Northampton Public Schools v. Boston Public Schools and DESE – BSEA # 11-7992



<br /> Northampton Public Schools v. Boston Public Schools and DESE – BSEA # 11-7992<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Northampton Public Schools v. Dept. of Elementary and Secondary Education and Boston Public Schools

BSEA No. 11-7992

DECISION BASED ON WRITTEN SUBMISSIONS

This decision is issued pursuant to the Massachusetts special education statute, M.G.L. c. 71B (“Chapter 766”), the Massachusetts Administrative Procedures Act, M.G.L. c. 30A, and regulations promulgated under those statutes. On May 24, 2011, the parties agreed to have a decision issued on the basis of written submissions.1

INTRODUCTION AND PROCEDURAL HISTORY

This case involves the determination of which of two school districts is programmatically and fiscally responsible for the residential educational placement of a student in the permanent custody of the Department of Children and Families (DCF). This student (Student) was deemed homeless for a period of time as he moved through several DCF living situations. The underlying issue is whether Student’s brief stay in a foster home located in Boston, during which time he attended a public school program operated by the Boston Public Schools, effectively terminated Student’s “homeless” status, and transferred programmatic and fiscal responsibility to the Boston Public Schools, or whether such status continued without interruption such that Northampton, as Student’s “district of origin” pursuant to relevant statutes, continued to bear this responsibility.

On May 12, 2011, the Northampton Public Schools (Northampton) filed a timely appeal of an Assignment of School District Responsibility ( Assignment ) issued by the Department of Elementary and Secondary Education (DESE). This Assignment had designated Northampton as the school district with fiscal and programmatic responsibility for the Student’s residential educational placement. Northampton asserted that DESE should have assigned such responsibility to the Boston Public Schools (Boston).

On May 27, 2011, the Boston Public Schools (Boston) filed a Brief in support of DESE’s assignment of responsibility to Northampton. On May 31, 2011, Northampton filed a Response to Boston’s Brief . On June 1, 2011, DESE filed a Position Statement . Also on June 1, 2011, Northampton filed a Response to DESE’s Position Statement ; and DESE filed a Response to Northampton’s Response . A conference call was held on June 4, 2011, pursuant to which Boston provided additional documentation to Northampton and DESE so that either or both parties could reconsider their positions, if appropriate, based on such documentation. As ordered by the Hearing Officer, the final status reports were filed on June 22 and 23, 2011 indicating that all parties maintained their original positions. The record closed on June 23, 2011.2

The official record of this hearing consists of the submissions listed above, together with multiple attachments, as well as additional documents pertaining to the McKinley School in Boston and Student’s enrollment therein.

ISSUE

At issue here is w hether the DESE’s determination that Northampton is programmatically and fiscally responsible for Student’s residential educational placement is correct, or whether Boston is now the responsible school district.

SUMMARY OF THE EVIDENCE

1. Student is a ten-year-old child with disabilities. His eligibility for special education and related services is not in dispute. Student is in the permanent custody of DCF, which has placed Student in a variety of treatment facilities and foster homes since at least January of 2008. (Northampton’s brief, page 1)

2. Student’s mother’s (Mother’s) parental rights were terminated in October 2008 while she was incarcerated.3 Her last residence prior to the termination of parental rights was Northampton, Massachusetts. (Northampton’s Brief, page 2)

3. From January 2008 until December 2010, Student was placed at the McAuley- Nazareth treatment center pursuant to an IEP issued by Northampton and a cost share arrangement between Northampton and “DCF.” (Northampton’s Brief, page 2) In December 2010 circumstances unrelated to Student’s educational needs required Student’s emergency removal from McAuley-Nazareth. (See Boston’s Brief , page 2)

4. In an LEA assignment letter dated July 31, 2009, DESE found Northampton to be fiscally and programmatically responsible for Student. The BSEA upheld DESE’s determination in a decision issued on October 22, 2009. ( Northampton Public Schools v. Greenfield Public Schools and DESE , BSEA No. 10-1393 (Figueroa, 2009)). (hereafter, “ Northampton I ”) In that decision, the hearing officer found that Mother was homeless between June 2008 and approximately July 1, 2008, when she was incarcerated. The hearing officer further concluded that because because Mother’s last residence before becoming homeless was Northampton, then Northampton was responsible for Student’s educational programming.4

5. In December 2010, pursuant to the emergency removal from McCauley-Nazareth referred to above, DCF placed Student in a foster home in Manomet, Massachusetts. Student remained in that home for approximately one month. In January 2011 DCF placed Student in a second foster home in Boston, Massachusetts where he stayed until March 30, 2011.

6. While staying in Boston, Student attended the McKinley School, a substantially-separate public school for students with disabilities operated by Boston. The only documentation of Student’s McKinley attendance in the record is three forms: an attendance form, a “Demographic Information Form” and a transportation form. These documents appear to indicate that Student entered the McKinley on or about February 14, 2011 and left in June 2011.

7. There is no indication in the record that Boston ever evaluated Student, convened a TEAM meeting, issued a new IEP reflecting the McKinley placement, or made any determination that McKinley was an appropriate placement. There is no evidence in the record that Student’s last accepted IEP, which was Northampton’s IEP calling for residential placement, ever was changed.

8. On or about March 30, 2011, DCF placed Student was a “STARR” bed at a residential school in Natick. (Northampton’s Brie f, page 2)5 DCF’s plan was for Student was to remain in the STARR bed for forty-five days before moving to a long-term residential placement. (Boston’s Brief , pg. 2) He subsequently was placed in a residential educational program in another town, which is not any of the towns or cities in which Student had previously lived. (Northampton, Manomet, Boston, or Natick).6

9. On April 27, 2011, DESE issued an Assignment of School District Responsibility finding Northampton Public Schools fiscally and programmatically responsible for Student’s education. The assignment letter stated that the applicable regulation is 603 C.M.R. 28.10(3), which provides that school district responsibility is based on the residence of the parent or legal guardian when the student’s IEP requires an out of district placement and the student lives in a residential schools. The letter further explained that Student was “homeless” and awaiting long-term placement in a residential school. Additionally, the letter stated that Student’s mother’s parental rights were terminated in October 2008 and her last residence prior to termination was Northampton. (Exhibit 1, Northampton’s Brief )

POSITIONS OF THE PARTIES

The parties’ positions turn on interpretation of two regulations: 603 CMR Sec. 28.10(2), which establishes LEA responsibility based on the residence of a student (as opposed to that of a parent), and 603 CMR 28.10(5), which establishes LEA responsibility for homeless students. The parties differ on (1) whether Boston became the responsible LEA when Student lived in a Boston foster home and (2) whether Student was “homeless” during his tenure in Boston such that Northampton was financially responsible for Student while he was living there.

Northampton argues that Boston became responsible for Student’s education when Student moved into his Boston foster home in January 2011. Northampton relies on 603 CMR 28.10(2), which provides that the school district where the student (as opposed to the parent) resides has programmatic and fiscal responsibility when a student lives in a foster home where he/she has been placed by and/or funded by DCF. Northampton asserts that Student’s relatively short tenure in the Boston foster home is immaterial, as the pertinent regulation does not mention the duration of the foster placement; rather, the regulation unequivocally places all responsibility on the LEA where the foster home (and hence the child) is located. Thus, even though Student may have been homeless prior to entering the Boston foster home, such that Northampton retained responsibility for his placement, he no longer was homeless once he had done so, and as of that point, Boston became the responsible LEA.

Alternatively, Northampton argues that even if Student was still homeless while living in Boston, Student’s enrollment in a Boston Public Schools program terminated Northampton’s responsibility for his education. Northampton relies on 603 CMR 28.10(5) which states that

The school district(s) that was programmatically and financially responsible prior to the student becoming homeless shall remain programmatically and financially responsible for a homeless student until the parent(s) or legal guardian or state agency with care or custody of the student chooses to enroll the student in the school district where the shelter or temporary residence is located.

Northampton argues that Boston became fully responsible for Student once he had enrolled in the McKinley School. According to Northampton’s argument, it follows that beginning in January 2011, when Student left Boston for the STARR bed in another community, and thereby became homeless again, it was Boston that continued to be programmatically and fiscally responsible for him because Boston had been the responsible school district at the time that Student became homeless.

Boston agrees that 603 CMR 28.10(5) is controlling in this matter. Boston disagrees with Northampton’s assessment of when Student should be deemed homeless, however. Boston argues that Student was rendered homeless in June 2006 when he was placed in the care and custody of DCF, and he has remained continuously homeless within the meaning of the McKinney-Vento Homeless Assistance Act from that time forward, because Student has been in the care or custody of DCF and has been placed out of his home in temporary, transitional or emergency living placements. See McKinney-Vento Act, § 725(2); 42 U.S.C. 11434a; DESE Homeless Education Advisory 2004-9 ; DESE McKinney-Vento Homeless Assistance Advisory 2002-1. Boston argues that because Northampton was the last responsible LEA before Student initially became homeless, Northampton continues to be fiscally and programmatically responsible for Student’s education.

DESE takes the position that Student has been homeless since leaving the McAuley Nazareth program in December 2010 because after leaving this facility, Student was placed in several short-term temporary placements; therefore, he should be considered “awaiting foster care placement,” and, hence, homeless pursuant to pertinent provisions of McKinney-Vento. See DESE Homeless Education Advisory 2004-9 .

DESE disagrees with Northampton’s position that Student’s enrollment and attendance in the Boston Public Schools changed his homeless status and made Boston both programmatically and fiscally responsible for Student. It argues that at most, Boston became programmatically responsible for Student during his temporary stay in Boston, but Northampton remained the district responsible for Student prior to becoming homeless and it will remain responsible until Student is no longer homeless.

FINDINGS AND CONCLUSIONS

The Massachusetts special education regulations give DESE authority to resolve issues regarding residency and LEA responsibility for special education students. 603 CMR 28.10. Under 603 CMR 28.10 (9), the regulations further grant authority to the BSEA to decide subsequent appeals of those determinations.

In Massachusetts, school age children have a right to attend public school in the town where the child resides. MGL c. 76 §5. Specifically addressing school age children with special education needs, MGL c. 71B §3 charges each district with the responsibility of identifying eligible children within their districts. Further guidance addressing a district’s financial and programmatic responsibility for eligible students is provided through the Massachusetts special education regulations .

Generally, 603 CMR 28.10(3) provides that a school district’s fiscal and/or programmatic responsibility for a student is based on the residence of the parent(s) or legal guardian, including when the student lives in a special education residential school. 603 CMR 28.10(3)(b) .

In this case, there is no dispute that Northampton was fiscally and programmatically responsible for Student’s placement at McAuley Nazareth. Further, there is no dispute that Student was homeless at the moment he left McCauley Nazareth, and also during the time he was in a STARR bed after leaving Boston, but before he entered his current placement. The dispute centers on whether Student remained homeless during the time that he resided in a foster home in Boston and enrolled and attended a Boston school.7

The Massachusetts DESE has adopted Section 725(2) of McKinney-Vento regarding the definition of homeless children and youth, which includes children and youth awaiting foster care placement. In collaboration with the DCF, DESE has determined that children and youth in state care or custody who have been placed out of their homes into temporary, transitional, or emergency living placements are “awaiting foster care placement” and, therefore, are homeless. This definition encompasses students living in programs referred to as “shelters,” “hotline homes,” “bridge” homes, and diagnostic placements since such programs, by design, provide temporary, transitional or emergency housing.8 Additionally, there may be other instances in which children may be placed in residences that are not temporary by design (for example, a foster home used as a short term placement) but are emergency, transitional, or temporary placements for the child in question. ( Homeless Education Advisory 2004 – 9: Children and Youth in State Care or Custody )

In light of the foregoing, it is clear that the Boston foster placement was temporary, and never was intended to be a permanent placement for Student. Therefore, DESE’s and Boston’s argument that Student remained a homeless student awaiting placement while he was staying in Boston is persuasive.9 Under these circumstances, Northampton, the last district responsible for Student before he became homeless (using either the date upon which parental rights were terminated or the date upon which he was removed from McAuley Nazareth) has remained fiscally responsible for Student without interruption and resumed programmatic responsibility once Student left Boston.

ORDER

DESE’s finding that Northampton remains fiscally and programmatically responsible for Student is upheld.

By the Hearing Officer,

____________________________________

Sara Berman

Dated: July 18, 2011


1

The moving party, Northampton Public Schools, had explicitly requested a decision based on the written submissions in its original hearing request. On May 24, 2011, in response to the hearing officer’s inquiry, DESE assented to Northampton’s request, and Boston filed no objection to the request.


2

The original hearing date of June 1, 2011 had been postponed by agreement of the parties in order to allow all parties to file memoranda in support of their positions.


3

The record contains no information about Student’s father.


4

The decision in Northampton I is incorporated herein by reference.


5

“STARR” stands for “Stabilization, Assessment, and Rapid Reintegration/reunification Program.” STARR placements are short-term placements have replaced other types of temporary or emergency housing that DCF previously provided and are considered “temporary, transitional or emergency homeless housing” under McKinney-Vento. See DESE Position Statement , p. 2.


6

To protect the safety and security of the Student under the unique circumstances of this case, the town where Student’s current placement is located is not mentioned here.


7

The parties make no arguments regarding the effects of Student’s one-month stay in Manomet.


8

As stated above, these temporary situations now are called “STARR” placements by DCF.


9

Further, contrary to Northampton’s argument, Student’s physical presence at the McKinley School must at most be viewed as Boston’s temporary assumption of programmatic responsibility for a homeless child with an IEP calling for residential school, which in no way affects Northampton’s financial responsibility while Student was in Boston, or full responsibility once he had left Boston. See 603 CMR 28.10(5)(b).


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