Salem Public Schools, Marblehead Public Schools, Massachusetts Department of Education – BSEA #02-4739



<br /> Salem Public Schools, Marblehead Public Schools, Massachusetts Department of Education – BSEA #02-4739<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Salem Public Schools,
Marblehead Public Schools,
Massachusetts Department of Education

BSEA #02-4739

RULING ON SALEM PUBLIC SCHOOL’S MOTION FOR SUMMARY JUDGMENT

On June 4, 2002, Salem Public Schools (Salem) appealed a November 26, 2001 and May 17, 2002 determination by the Massachusetts Department of Education (DOE) that the Marblehead Public Schools (Marblehead) and Salem are jointly responsible for the cost of Student’s placement at the Crotched Mountain School in Greenfield, New Hampshire (Crotched Mountain), since Student’s enrollment in July of 1999. On October 4, 2002, Salem filed this Motion for Summary Judgment, asserting that Marblehead alone, is responsible for the Crotched Mountain School’s costs. Marblehead and DOE responded to such Motion for Summary Judgment, asserting that DOE’s determination of joint responsibility should be upheld.

STATEMENT OF THE ISSUES

I. Did Salem file its BSEA appeal timely?

II. Did DOE exceed its statutory authority in assigning joint programmatic/fiscal responsibility to Marblehead and to Salem, based on the premise that neither parent retained sole physical custody?

III. Should Salem’s lack of knowledge that Father resided in Salem, and therefore lack of participation in the development of Student’s IEPs, render Salem exempt from any retroactive responsibility prior to having knowledge in September of 2001?

IV. Is Salem precluded from appealing the joint prospective responsibilities, by virtue of its correspondence to Marblehead accepting prospective responsibility and rejecting any retroactive responsibilities?

STATEMENT OF THE POSITIONS OF THE PARTIES

I. Did Salem file its BSEA appeal timely?

Marblehead’s position

Salem failed to file its appeal within the thirty days of DOE’s November 26, 2001 determination of joint responsibility for Student’s Crotched Mountain School placement. Therefore this appeal should be dismissed for lack of jurisdiction, for such filing deadline is required by DOE’s regulation at 603 CMR 28.03(4)(h). Although DOE issued a May 2002 letter clarifying that the joint assignment was prospective as well as retroactive, the actual assignment was made in November of 2001, and thus, the appeal must have been filed by December of 2001. Given Salem’s June of 2002 appeal date, Salem did not timely appeal that assignment, and therefore, the Bureau lacks jurisdiction.

Salem’s position

Salem filed its appeal with the Bureau of Special Education Appeals on June 13, 2002, less than thirty days after DOE’s May 17, 2002 determination of prospective as well as retroactive responsibility back to July of 1999. It is true that Salem did not appeal DOE’s November 26, 2001 determination of joint responsibility. Rather, it informed Marblehead that because it had not participated in the development of Student’s previous IEPs, it would accept prospective responsibility, but not prior to December 1, 2001. Admittedly, Salem failed to appeal within thirty days of the November 26, 2001 determination, however, that was a tentative determination; not until May 17, 2002, did DOE clarify that its assignment of joint responsibility was retroactive, thus leading to Salem’s appeal.

II. Did DOE exceed its statutory authority in assigning joint programmatic and fiscal responsibility, based on the premise that neither parent retained sole physical custody?

Salem’s position

DOE’s authority in assigning programmatic or fiscal responsibility for a special education student is limited to assigning the municipality in which Student resides. See Walker Home for Children v. Franklin, 416 Mass. 291, 295 (1993). Further, according to the Walker decision, there can be only one residence, for residence is equated with domicile. Id, at 296-7. Given that the physical custody of Student is with Mother who resides in Marblehead, that is Student’s residence, and DOE is limited to assigning Marblehead alone. DOE exceeded its statutory authority by assigning joint responsibility based on the premise that neither parent has sole physical custody, for this places responsibility on a municipality wherein Student does not reside. The pertinent regulation states:

Where a student is in a living situation [residing with a parent, and attending a residential special education school], … and the student’s father and mother live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the parents are divorced or separated and the father or mother has sole physical custody.

To say that Student lives with both parents by virtue of the fact that neither has sole custody, would mean that the parents have joint physical custody. This is not so. Thus, a determination of residency must be based on the standard of physical custody, not sole physical custody. DOE’s assignment of joint responsibility cannot be enforced. Marblehead alone is responsible for Student’s Crotched Mountain School placement.

Marblehead’s Position

DOE did not surpass its authority in promulgating its regulation providing for shared responsibility when a student receives out-of-district residential placement, the parents reside in different school districts, and neither parent has sole physical custody. Absent sole physical custody, both parents have physical custody, and therefore, Student resides in both municipalities. Based on such assumption, the regulation’s call for joint responsibility unless one has sole physical custody , is not inconsistent with the residency requirements set out in the Walker decision. In the current case, Student does in fact reside with both parents when he returns home on vacations from the Crotched Mountain School. Thus, joint responsibility is called for based on the law, and based on the facts.

DOE’s position

DOE acted within its authority in promulgating the regulation calling for joint programmatic/fiscal responsibility where divorced parents live in two different municipalities, except where one has sole physical custody. Such regulation is not inconsistent with the Walker case, for it assigns responsibility based on the child’s residence with the parent. DOE relies on the principle that the residence of a minor child is generally the residence of the parents, and therefore, unless one parent has sole physical custody, the child’s residence is deemed to be with both parents. In this case, the parents are divorced, living in two municipalities, neither parent has sole physical custody, and therefore, Student is deemed to reside with both parents, and both LEA’s are therefore responsible.

III. Should Salem’s lack of knowledge that Father resided in Salem, and therefore lack of participation in the development of Student’s IEPs, render Salem exempt from any retroactive responsibility prior to having knowledge in September of 2001?

Salem’s position

Given Salem’s lack of knowledge that a special needs student resided in Salem, imposing a retroactive responsibility during that time would circumvent both the letter and spirit of the “move-in” law created to protect communities from such budget impacts. See MGL 71B §5.

Marblehead’s position

Although Salem had not been informed of Student’s/Father’s residence in Salem, it had a responsibility under the Child-Find obligations. Just because Salem failed to be diligent in such child-find, it should not be rewarded by denying retroactive joint responsibility. Salem seeks to graft a requirement of notice upon the statute and regulations [regarding fiscal/programmatic responsibility] where none exists.

IV. Is Salem precluded from appealing the joint prospective responsibilities, by virtue of its correspondence to Marblehead accepting prospective responsibility?

Salem’s position

Salem’s misinformed acceptance of prospective joint responsibility with Marblehead cannot be grounds for limiting its appeal rights. A government agency that erroneously acted ultra vires, must rectify the mistake. Thus, although erroneously conceding joint responsibility, it now would be acting ultra vires to accept such responsibility.

Marblehead’s position

Salem should be estopped from arguing against prospective joint responsibility for it previously acknowledged its responsibility. It would be inequitable to now change a position on which Marblehead relied.

STATEMENT OF FACTS

For purposes of this ruling, the following facts are assumed.

Student is a fifteen-year old child diagnosed with cerebral palsy, seizure disorder, and visual issues, and is eligible for special education and related services. Student’s father has resided in the town of Salem, Massachusetts since 1995. Student’s mother has resided in the town of Marblehead, Massachusetts since 1995. Prior to that, Mother resided in California, where, in 1994, the parents entered into a written conciliation court agreement and stipulated order regarding the custody of Student. That is, they agreed, and the court ordered, that the parents shared joint legal custody, but because Father lived out of state, the “primary physical custody” would be with Mother, and Father’s “period of responsibility, care and control of [his son]” would be one month during the summer, and one week during Christmas holidays1 . (See Marblehead’s Exhibit #2, Judgment of the Probate Court of Los Angeles.) There is no evidence that this court-ordered agreement was superseded by another after Mother moved to Marblehead, Massachusetts. However, since Mother’s move to Marblehead, Massachusetts, the parents apparently altered the agreement between them, and assert that they have shared physical custody. Father stated such in a September 6, 2001 letter to Marblehead. (See Marblehead Exhibit #1) Father further stated such on October 1, 2002, “under pains and penalties of perjury”, elaborating that his son spends parts of the vast majority of weekends and vacations at his Salem home, including overnight stays. He stated that he shared the physical custody “during virtually all periods of time during the last three years when [his son] has been home from [the Crotched Mountain School]”. (Marblehead Exhibit #3)

Student attended Marblehead’s Middle School between 1997 – 1999. In July of 1999, pursuant to the IEPs developed by Marblehead’s TEAM, Student began attending the Crotched Mountain School. Prior to September of 2001, Salem was unaware of Student or Father’s residence, and was never invited to and never participated in the Team process regarding Student’s education. (Marblehead Exhibit #6)

In September of 2001, Marblehead’s Director of Special Education contacted Salem’s Assistant Director of Special Education, to discuss a shared financial responsibility for Student’s Crotched Mountain School placement. Salem refused to accept programmatic or fiscal responsibility without a DOE assignment. (Marblehead’s statement, par. 9, Salem’s statement, par. 7) On October 29, 2001, Marblehead filed with DOE a Request for Clarification or Assignment of School District. On that form, Marblehead stated that Student’s residence was shared between Mother’s and Father’s residences, and a copy of the court-ordered custody agreement was attached. (Marblehead’s Exhibit #2) On November 26, 2001, DOE2 notified the parties that they were jointly responsible for the Crotched Mountain School costs. (Marblehead Exhibit #5) On January 28, 2002, and again on February 15, 2002, Salem accepted joint responsibility prospectively. However, because it had not participated in the development of Student’s 1999 – 2000 or 2000 – 2001 IEPs, it informed Marblehead that it would not accept responsibility prior to DOE’s assignment, thus, prior to December 1, 2001. (Marblehead Exhibits #6, 7) Further action was taken by neither party. However, on May 17, 2002, pursuant to a request for clarification from the Crotched Mountain School, DOE stated that because physical custody was shared by both parents, the two school districts “should always have had joint responsibility,” beginning in July of 1999 when Student enrolled at the Crotched Mountain School. (Marblehead Exhibit #8,9) On June 13, 20023 , Salem filed its BSEA appeal of this May 17, 2002 retroactive assignment back to 1999. In that appeal letter, Salem stated that it had not challenged the November 26, 2001 prospective assignment of joint responsibility, but that “it was not until a later determination/clarification on May 17, 2002, that [Salem] became aware of the retroactive application of [the] earlier decision”. (Marblehead Exhibit #10).

RULING

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Massachusetts Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01(7)(h). After careful review of the evidence and the law, I find that Salem’s Motion for Summary Judgment can be granted in part, however, it is unclear whether there is a dispute regarding a material fact. Accordingly, Salem’s Motion is GRANTED as to issues #1 and #4, DENIED as to issue #3, and DENIED as to issue #2 in the event that there is a dispute regarding Student’s residence. My analysis follows.

I. Did Salem file its BSEA appeal timely?

Whether Salem filed within the thirty-day appeal period is debatable. If one interprets the facts to support a finding that the November 26, 2001 assignment was final, not tentative, that Salem knew the assignment was both prospective and retroactive (for Salem told Marblehead that it would refuse to accept such responsibility), and that it failed to appeal within thirty days, or even inquire of DOE as to the retroactive status, then one might argue that this case should be dismissed for lack of jurisdiction. Certainly, Salem failed to appeal the prospective issue within thirty days of the November 2001 assignment, (it in fact accepted responsibility), and therefore one might clearly argue that Salem should be precluded from appealing its prospective responsibility. This, however, would be contingent on a finding that the thirty-day appeal period even applies in this case. I find that it does not. Thus, Salem’s appeal should not be dismissed, and its Motion for Summary Judgment is GRANTED in part.

Marblehead and Salem rely on the thirty-day appeal period allowed for DOE assignments, found at 603 CMR 28.03(4)(f), (g) and (h). They state in relevant part:

(f) When a student is in a living situation as described in §28.03(4)(b), (c), or (d) and the student has no father, mother or guardian living in the Commonwealth or has been surrendered for adoption or whose father, mother or guardian resides in an institutional setting in Massachusetts, the responsible districts are as specified in §28.03(4)(b), (c), or (d). The Department may assign or a school district or agency may request the Department’s assistance in assigning a city, town, or school district as the parent’s district when the father’s, mother’s, or guardian’s residence or history is in dispute, or the student is not receiving services. … The school district or agency requesting assignment shall be responsible to provide to the Department all required documentation to ascertain the father’s, mother’s, and/or guardian’s legal status or residence(s). Such documentation shall include, but is not limited to, the following:

1. If the residence of the child’s father, mother, or guardian is unknown, the school district or agency shall provide verification of attempts to identify or locate the father, mother or guardian;

2. If the child has been voluntarily surrendered for adoption or freed for adoption by the Probate Court or the Juvenile Court, the school district or agency shall provide documents verifying such action; and

3. If the child’s father, mother, or guardian resides in an institutional setting in Massachusetts, including, but not limited to, a correctional facility, a hospital, a nursing home or hospice, or a mental health facility, the school district or agency shall provide documentation verifying such circumstance.
(g) The Department shall use the following criteria to assign a city, town or school district responsibility for the provision of special education to a child under this section:

1. The last known Massachusetts residence of the child’s father, mother, or guardian prior to moving from the Commonwealth, dying, surrendering the child for adoption, or having parental rights terminated.

2. When a child’s father and mother are separated or divorced and neither the father nor mother resides in the Commonwealth, the last known residence of the last parent to have lived in Massachusetts.

3. If a father, mother, or guardian resides in an institutional setting in Massachusetts, including, but not limited to, a correctional facility, a hospital, a nursing home or hospice, or a mental health facility, responsibility for fulfilling the requirements of these regulations rests with the school district of residence of such mother, father or guardian immediately prior to his/her entry into such institutional setting.

(h) Using the above criteria, the Department shall notify in writing the assigned school district(s), who shall be afforded the opportunity to present any additional information that would bear upon the Department’s determination. Upon notification of responsibility for provision of special education to a child under this paragraph, the school district(s) shall immediately begin to provide such services in accordance with the requirements of these regulations. Until such notification, the school district that had been responsible for providing special education to such child under these regulations shall continue to be responsible. The assigned school district(s) may seek review of the Department’s assignment with the Bureau of Special Education Appeals, provided such request for review is filed within 30 days of receipt of the Department’s assignment. (bold added)

Although DOE “assigned” joint responsibility to Marblehead and Salem, its action is not properly an assignment pursuant to these subsections, but rather, a conclusion interpreting subsections 603 CMR 28.03(4)(e), 28.02(16), and prior to January of 2001, to subsection 603 CMR 202.1(g). They state:
.

Where a student is in a living situation described in §28.03(4)(a)(1), (b), (c) or (d) and the student’s father and mother live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of these regulations except if the parents are divorced or separated and the father or mother has sole physical custody. 603 CMR 28.03(4)(e)
and

Parent’s school district shall mean the school district where the father, mother, and/ or guardian resides; or, if the parents are divorced or separated, the school district where the parent with physical custody of the student resides; …

603 CMR 28.02(16)
and prior to January 1, 2001:

Where the parents of a [residentially placed child] live in different school districts, such school districts shall be jointly liable for fulfilling the requirements of these regulations. 603 CMR 202.1(g)

There is nothing in the regulation that supports Marblehead’s use of the assignment regulations’ thirty-day appeal period in contesting DOE’s interpretation of its subsections 28.03(4)(e), 28.02(16), and its predecessor subsection 202.1(g). In fact, the regulations in effect prior to January of 2001, make no mention of a thirty-day appeal period at all. The substance of this appeal has to do with the legality of 202.1(g)’s and 28.03(4)(e)’s directive for joint responsibility, based on physical custody. Subsections (f), (g), and (h) address LEA responsibilities where the residences of the parents or guardian are in question. This is not the case here, for the residences are clear: Father resides in Salem, and Mother resides in Marblehead. Thus, subsection (h)’s thirty-day appeal period, clearly intended for DOE assignments where there is no clear residence, cannot be applied to legal challenges of DOE’s implementation of subsections 603 CMR 28.03(4)(e) and 28.02(16), where parents’ residences are clear.4 The regulations do not state that, and further, if they did, they would deny a party’s right to challenge the legality of a regulation potentially in violation of its enabling statute, Chapter 71B §35 . The thirty-day appeal period delineated in subsection (h) has a very limited application, intended to provide the LEAs with stability in a situation where there is no parental residence, or at least, there is a lack of clarity as to parents’ residence, and therefore, as to LEA responsibilities. In these situations, DOE is authorized to do its best, using specific criteria, to “construct” a resident LEA in as fair a way as is possible.

II. Did DOE exceed its statutory authority in assigning joint programmatic/ fiscal responsibility to Marblehead and to Salem, based on the premise that neither parent retained sole physical custody?

Having determined that Salem’s right to a BSEA appeal was not cut off by its failure to appeal within thirty days of DOE’s November 26, 2001 assignment, it is appropriate to address the next question: did DOE exceed its statutory authority in assigning joint programmatic and fiscal responsibility? The overriding principle in determining LEA responsibility is that programmatic/fiscal responsibility for Student’s education rests with the municipality wherein the student resides. Such is statutorily prescribed in Chapter 71B §3, and judicially enforced in Walker Home for Children v. Franklin, 416 Mass. 291 (1993): “… the school committee of every city, town or school district shall identify the school age children residing therein who have special needs … (and) provide or arrange for the provision of (a) special education program (for such children).” Chapter 71B §3.

The Walker Court acknowledged the difficulties in determining residencies, quoting the Massachusetts Appellate Court’s observation that a child’s residence “is not so obviously self-defining when considerations such as split families,… and institutionalized children enter the picture.” Board of Education v. School Comm. of Amesbury, 16 Mass. App. Ct. 508, 512 (1983).

DOE promulgated regulations specifying which school committee is responsible for students in various factual circumstances. The applicable regulations in the instant factual circumstance, effective January 2001, states:

The parent’s school district shall have both programmatic and financial responsibility when …, in order to implement student IEPs, eligible students require an out of district placement and such students live and receive special education services at approved special education residential schools or pediatric nursing homes. 603 CMR 28.03(4)(b)

Parent’s school district shall mean the school district where the father, mother, and/ or guardian resides; or, if the parents are divorced or separated, the school district where the parent with physical custody of the student resides, …

603 CMR 28.02(16)

Where a student is in a living situation described in §28.03(4)…(b) [including an approved residential school] and the student’s father and mother live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of these regulations except if the parents are divorced or separated and the father or mother has sole physical custody. 603 CMR 28.03(4)(e)

Its predecessor regulation in effect up to January 2001 states:

[Where the parents of a residentially placed child] live in different school districts, such school districts shall be jointly liable for fulfilling the requirements of these regulations. 603 CMR 202.1(g)

Such regulations must be interpreted, if possible, in a way that is consistent with the guidance of the Walker Court. Thus, the assignment of responsibility to the parents’ district(s) must be based on assumptions that a student’s residence is with the parent(s), that a student’s residence is with the parent having physical custody, and that a child resides with both parents unless one has sole physical custody. To the extent that the current factual circumstance fits these assumptions, and DOE’s assignment is thus based on Student’s residence(s), then DOE acted within its authority, its determination must be upheld, and Salem’s Motion for Summary Judgment must be denied as it applies to this issue of DOE’s authority.

Thus, the question is, where does Student reside? The Walker Court clearly rejected the assertion that students attending residential schools, reside there. It stated:

We reject Milford’s suggestion that John and James “reside” in Needham and Barre, the municipalities in which their residential special education schools are located. A municipality is not relieved of its responsibility for a special needs student because that student participates in a special education program in a residential setting elsewhere. As long as the child’s parent lives in the municipality that evaluated and referred the child to the residential school for a special education program, the child’s residence or domicile remains unchanged. Id, at 297.

Further, the Walker Court was quite clear that where parents live in two different municipalities, where one parent has physical custody, and where the children (attending a residential school) only visit the other parent, joint LEA responsibility violates the residency mandate of Chapter 71B §3. Walker , at 292, 297.

Thus, the question remains: if Student does not reside at the Crotched Mountain School, is he residing with his mother and visiting his father, or is he residing with both? Ordinarily, a student resides with the parent having physical custody. However, such is not always so clear.6 Thus, DOE correctly considered more information than the court-ordered settlement agreement, allowing for a finding of physical custody that is defined by one’s residence. It considered the parents’ statements that Student resided with both of them. It considered Father’s statement that his son “spends parts of the vast majority of weekends and vacations at his Salem home, including overnight stays”, and that he shared the physical custody “during virtually all periods of time during the last three years when [his son] has been home from [the Crotched Mountain School]”. (Marblehead Exhibit #1, 3) As long as this amounts to Student’s residing in both homes, then joint LEA responsibility is called for. The record is not clear as to whether Salem agrees that Student resides, as oppose to visits, with his father. Accordingly, Salem’s Motion for Summary Judgment must be DENIED as it relates to DOE’s authority to assign joint responsibility, and Salem must be provided an opportunity to present factual evidence regarding Student’s residence/visitations with his father.

Having determined that Salem’s Motion for Summary Judgment must be denied as it relates to this issue of DOE’s authority to assign joint programmatic/fiscal responsibility, several factors should be considered in deciding whether to pursue a hearing on the issue of Student’s residence/visitations with his father. First, Salem’s reliance on the California court-ordered settlement agreement is misplaced; it is only one piece of evidence regarding Student’s residence. In fact, it has little relevance, for it was an agreement based on a living situation occurring previous to the time in question. Further, whether the settlement agreement means that physical custody lies with Mother, or with both, is not the issue. Rather, has Student resided with one or both parents since his July of 1999 enrollment at the Crotched Mountain School? The facts provided thus far support DOE’s position that Student resided with both parents. Secondly, Salem was not persuasive in its assertion that the Walker decision precludes multiple residencies. The Court stated that one can have only one domicile, and that one’s residence is usually one’s domicile. However, this does not preclude two residences; the legal definition of domicile clearly recognizes that one may have several residences. According to the dictionary, where one has several residences, “it may be a matter of proof as to which is the … domicile”. See Law.com dictionary. It is a child’s residence, not domicile, that is relevant for determining the Chapter 71B LEA responsibilities. See Chapter 71B §3. Thus, if Student truly splits his time with both parents, then it would be inaccurate to say that he resides only with his mother.

III. Should Salem’s lack of knowledge that Father resided in Salem, and therefore lack of participation in the development of Student’s IEPs, render Salem exempt from any retroactive responsibility prior to having knowledge in September of 2001?

If it is determined that Student resides with both parents, the equitable issue remains: should Salem’s lack of knowledge and therefore lack of participation in the development of Student’s IEPs prior to December of 2001, render Salem exempt from responsibility prior to that time? This issue was addressed by Superior Court Judge Botsford in School Committee of Stoneham v. Robert Antonnucci , Superior Court CA No. 92-5899 (April, 1996), and by Hearing Officer Crane in Georgetown Public Schools, BSEA #02-1798: one’s lack of knowledge does not negate an LEA’s responsibility for all special needs residents within its jurisdiction. Judge Botsford stated: “it seems more appropriate to read the statute as written and not to graft on to §5 a requirement that before a new community of residence may be held financially responsible for a residential placement of a child, it must receive timely notice that the child, his parent, or guardian had moved into the community.” As such, Salem’s claim that the move-in law should support its claim that it has rights to notice before taking on a large fiscal responsibility, is not persuasive, for Salem’s responsibility to its residents is not dependent on notice. Accordingly, Salem’s Motion for Summary Judgment is DENIED as it relates to its protection against retroactive responsibility. I can appreciate the possible inequity of the situation, and it does raise questions as to whether remedial steps could deter such problems in the future. Why, for instance, did Salem’s child-find procedures not discover the residence of a disabled student? Why is there no regulation requiring Marblehead to notify Salem as to its joint responsibility? Remedying this issue would not only provide notice to the LEA, but it would better allow the LEAs to work cooperatively and pool their resources in the interest of the child and the family.

Salem references Lowell Public Schools, Chelmsford Public School, DOE, BSEA #02-0735, as support for its position that fiscal/programmatic responsibility cannot be retroactive prior to DOE’s November 26, 2001 determination. Unlike the current situation, however, the Lowell, Chelmsford case involved a DOE assignment pursuant to 603 CMR 28.03(4)(f-h). Such restriction on retroactivity does not apply to the current case involving not an assignment, but rather, an agency’s interpretation of its regulations. There is nothing to preclude a retroactive application of that interpretation.

IV. Is Salem precluded from appealing the joint prospective responsibilities, by virtue of its correspondence to Marblehead accepting prospective responsibility?

Salem’s right to challenge the legality of DOE’s regulations is not terminated by virtue of its initial acceptance of prospective responsibility. Further, if it had erroneously accepted responsibility for a non-resident student, it would have acted ultra vires , and that mistake would need to be rectified. Accordingly, Salem’s Motion for Summary Judgment is GRANTED as to its right to appeal DOE’s decision.

In summary, Salem’s Motion for Summary Judgment is GRANTED as to issues #1 and #4, and DENIED as to issues #2 and #3. Within fourteen days of receipt of this ruling, the parties shall contact Paul O’Brien at the Bureau in order to schedule a hearing date.

____________________________

Sandra W. Sherwood

BSEA Hearing Officer

Date:


1

Marblehead characterized this court order as calling for “shared legal and physical custody”, albeit primary physical custody with mother, and therefore calling for sole physical custody to neither parent. Salem moved that this characterization of shared physical custody be stricken from the facts, asserting that the Court ordered that physical custody lies with Mother. This decision relies on the documented facts; these characterizations of the court-ordered agreement are assertions only. Accordingly, they need not be stricken.


2

Salem received such notice on December 4, 2001.


3

Marblehead asserts that Salem’s filing was on June 18 th , 2002, however, a review of the record as well as Marblehead’s Exhibit #10 supports the June 13 th filing date. Whether the Bureau’s need for clarification changed the filing date, is immaterial for purposes of this decision.


4

It is true that the child’s residence may be in question, but first, subsections f, g, and h don’t apply to questions of a child’s residence. Secondly, this case is not just a factual dispute, it is a legal dispute regarding the application of a regulation.


5

More general statutes of limitations have been interpreted to apply to BSEA appeals, but this appeal is clearly within the allowable timeframe. See Murphy v. Timberlane Regional School District , 22 F.3d 1186 (1 st Cir. 1994 ); Student v. Fall River Public Schools, BSEA #00-0771


6

As stated by Hearing Officer Byrne, even where physical custody is with one parent, if the child is actually residing with the grandparent, then the municipality of the grandparent’s would be responsible. See Agawam Public Schools, BSEA #00-1395 (January 2000). Similarly stated by Hearing Officer Crane, residence is established by where one lives, not by one’s legal residence. See Georgetown Public Schools, BSEA #02-1798 (April 2002). In that case, the Hearing Officer agreed with DOE that, where a child is in the custody of DSS and visits neither parent, the parent’s residence, not the child’s residence, determines LEA responsibility. However, such fact pattern differs from the current case where the parent(s) do have custody, the child does have contact with his parents, and therefore, where the child resides determines LEA responsibility.


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