COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
Student v. Boston Public Schools
BSEA # 02-2462
RULING ON PARENT’S MOTION FOR SUMMARY JUDGMENT AND DMH’S MOTION FOR DISMISSAL
This ruling is issued pursuant to the Student’s Motion for Summary Judgment and and DMH’s Motion for Dismissal, received by the BSEA on October 9, 2002 and October 10, 2002. Boston filed an Opposition to Summary Judgment on October 17, 2002.
The official record considered in Parent’s summary judgment and DMH’s dismissal motion s are Parent’s motion for summary judgment, DMH’s motion for dismissal, and Boston’s crossclaim and opposition to DMH’s and Parent’s motions. The Parties motions and oppositions to join, the ruling resulting from that motion and the rest of the Parties pleadings and stipulations are also considered part of the official record.
After careful consideration of the record, I hereby ALLOW Parent’s Motion for Summary Judgment and DMH’s motion to dismiss.
PROCEDURAL HISTORY/FACTS
Parent filed a request for hearing on May 20, 2002 for a determinations that Student required a therapeutic residential program to receive a FAPE, that Boston’s past IEP for the McKinley Middle School and the current IEP designating a private day placement at the Compass School were not appropriate and that Student was entitled to compensatory education (Hearing Request). A Prehearing was held on June 28, 2002. A motion session regarding Boston’s request to join DMH was held on July 15, 2002. At a prehearing conference call conducted on July 18, 2002 Parent made an oral motion for an interim residential program alleging that Student was accepted to a residential program and would lose a space in the program unless an immediate decision was made1 . The oral motion for interim placement was made during a telephonic prehearing regarding Boston’s motion to join DMH. Neither Boston nor DMH objected to the oral motion and were given an opportunity to respond at that time.
Pursuant to Special Education Hearing Rule 6D, a Hearing Officer may rule on a motion without holding a hearing if: 1) delay would seriously injure a party, if 2) testimony or oral argument would not advance the Hearing Officer’s understanding of the issues involved or 3) if a Ruling without a hearing would best serve the public interest. This Hearing Officer found that all three factors applied in this matter and ruled on the motion for an interim residential placement and the motion to join using the same evidence presented through Boston’s motion to join, Hearing Rule 6D1-3, see also 801 C.M.R. 1.01 (7). Boston’s motion to join DMH and Student’s motion for an interim residential placement were both granted on July 26, 2002. See July 26, 2002 ruling. Hearing dates were set by mutual request and agreement for September 30, 2002, October 1, 2002 and October 3, 2002.
A conference call occurred on September 17, 2002 to discuss the status of the matter, to confirm the issues in dispute and discuss any evidentiary issues for hearing. At that time DMH and Student asserted that no issues remained in dispute because all the Parties agreed that Student required a residential setting that was located in and integrated within the same program as his day educational placement. (Stipulation of Parties at Motion Session July 15, 2002 and Conference call July 18, 2002).2 Boston asserted that there remained facts in dispute. On that day the Parties requested a postponement of the hearing so that Boston’s new Counsel could file a formal cross claim for reimbursement from DMH for Student’s program at the Steven’s Home. Boston was informed and agreed that the cross claim would be its statement of issues in dispute and its theory for relief if Boston should prevail on its claim. See Ruling September 17, 2002. Boston agreed to an October 1, 2002 date for filing this statement. DMH and Students’ Counsel agreed to an October 10, 2002 date to file responsive pleadings. See Ruling September 17, 2002 (Attachment A).
On October 1, 2002, Boston filed the following crossclaim:
“ Please allow this correspondence to confirm that it is Boston Public Schools’ understanding that the issue remaining to be litigated in a Hearing of this matter will be whether this Student requires residential facilities for educational or non-educational reasons. Boston’s position is that such services are needed for non-educational purposes.” . See Boston’s Correspondence October 1, 2002 (Attachment B).
On October 10, 2002 Student filed a motion for summary judgment. DMH filed a motion for dismissal.
On October 17, 200+2 Boston filed an opposition to Student’s Motion for Summary Judgment and DMH’s Motion for Dismissal. Boston has not filed a cross claim.
FACTUAL BACKROUND
The operative facts can be briefly summarized as follows:
1. Student is a fourteen (14) year old boy (d.o.b. January 2, 1988) who has lived in Boston since first grade and has received special education services from Boston since that time. He has been diagnosed with Bipolar Disorder, Attention Deficit Hyperactive Disorder (ADHD), Nonverbal Learning Disorder (NLD) and Oppositional Defiant Disorder (ODD). Past diagnoses from hospital admissions include recurrent Major Depression, ODD, Impulse Control Disorder, and Learning Disability. (School Joinder Brief ) (hereafter S1). He is currently on the following medications: Depakote (1250 mg/day), Wellbutrin (200 mg/day), Zyprexa (10 mg/day), and Concerta (18 mg/day); (S1).
2. Student has been hospitalized six times since April 1997 for aggressive and dangerous behavior resulting from his emotional disabilities; Id .
3. DMH opened a case in the summer of 1999. DMH closed the case on December 29, 1999. There were no services provided (Boston).3
4. Student began attending the McKinley Middle School in December 1999 where he remained, but “struggled behaviorally”(S1). Between September and mid-December 2001, Student was placed at the McKinley Vocational School “in an effort to find a placement that would better contain him.” (S1). In November 2001 the Team reconvened and recommended Student remain at McKinley with a one-on-one paraprofessional. (S1).
5. On or about October 22, 2001 Student received a Collaborative Assessment Program (CAP Assessment). Student was found eligible for DMH services. CAP recommended that a case manager be assigned to coordinate services for the family. The assessors noted that it would be helpful for the case manager to schedule regular meetings with all involved providers to ensure that everyone is working in the same direction. CAP also recommended family therapy, continuation of Parent support services at Bay Cove Human Services and placement in a therapeutic, structured, self-contained residential setting. The CAP assessors noted that “[Student] is at high risk of harming himself, his mother, or someone else in the community as long as he remains at home…[Student’s] mother has exhausted every means of behavior management with him…she is physically and mentally exhausted… “ (S1)
6. DMH assigned a social worker who visited the family on one occasion in February 2002; however, he has received no other DMH services to date (Parent) (Parent’s Joinder Brief) (hereafter P1).
7. On December 17, 2001, “[Student] held a scissors to his art teacher’s throat,” and Student was charged with assault and battery (S1) Mother agreed on December 21, 2001, to an emergency placement at the Compass School requested by the school. In January 2002, Student “assaulted his tracker.” (P1). He was terminated from the Compass School in February and has not attended a school setting since that time (P1).
8. On March 19, 2002 the TEAM reconvened to develop a program for Student. DMH was invited to the meeting but did not attend. Boston has proposed an IEP placing Student in a “.5 residential cost-share with DMH”4 so that he can access the educational services during the day (S1). Mother rejected this plan (P1).
9. In approximately June 2002, DMH proposed a placement of Student at Lighthouse. Lighthouse is a DMH residential program in Watertown, MA that at that time had an on-site educational component. That educational component was scheduled to close in the fall of 2002 (P1). As such, if Student were to live at Lighthouse he would need to be transported to a private day therapeutic program (P1, Boston).
10. In June 2002 Student was accepted at the Orchard House (a private 766 approved day program) in Brighton. The Parties agree that Student could not go to the Orchard House because it does not provide a residential component. In mid July 2002 Student was accepted into the Stevens Home (a private 766 approved school and residential program) in Swansea (Parent). Student would lose the spot at the Steven’s Home if not accepted immediately (Parent).
11. The Parties agree that Student’s behavior has escalated at home, at the McKinley Middle and Vocational School and the Wediko summer residential program and in hospital settings. They also agree that Student requires a residential placement. Parent asserts that Student requires a residential placement for educational reasons. Boston asserts that Student requires a residential placement strictly due to his organic mental health issues but maintain that he can be educated in a day placement with the support of the DMH residential setting (Joinder Arguments DMH, Boston and Student).
12. Mother asserts that neither she nor school personnel have been able to successfully transport Student from one location to another due to behavior problems in the bus and Students attempts to exit the car while it is moving at high speeds (Parent). Boston does not dispute this fact (Stipulation motion session), see also Boston’s Opposition to summary judgment and dismissal.
13. There is no dispute between the Parties that Student needs intensive therapeutic residential treatment (School joinder brief p.10).
ISSUES
1. Are Parent/Student entitled to summary judgment on their claim that Student’s special educational needs require Boston to develop an IEP for a residential therapeutic program?
2. Should DMH’s motion to dismiss be granted because there is no material fact in dispute that Student requires a residential program to learn and as such, is as a matter of law, entitled to a residential educational program for a therapeutic placement?
RULING
After consideration of the record and the arguments of the Parties, Parents’ motion for summary judgment and DMH’s motion for dismissal are GRANTED.
Summary Judgment
Summary judgment is appropriate where there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law.” Kourouvacilis v. General Motors Corp ., 410 Mass 706 (1991), If the Motion is granted as to part of the claim which is not dispositive of the entire case, proceedings will be held on the remaining issues. See 801 C.M.R. 1.01(7)(h). The moving party (in this case Parent) bears “the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue.” Pederson v Time, Inc. 404 Mass. 14, 17 (1989). Massachusetts has adopted the federal standard, under which a defendant (or other party having the burden) may obtain summary judgment if it demonstrates that the opposing party has no reasonable expectation of proving an essential element of that party’s case. M.R. Civ.P 56. F.R.P. 56, Kourouvacilis v. General Motors Corp ., 410 Mass 706 (1991), following Celotex Corp. v. Catrett , 477 U S 317, 322 (1986). To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party’s claim.” Kourouvacilis v. General Motors Corp ., supra , at p. 716. The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett , supra , at p. 322. Once the moving party meets its burden, the burden shifts to the non-moving party to show with admissible evidence the existence of a dispute as to material facts. Kourouvacilis v. General Motors Corp ., supra , at p. 711, citing, Godbout v. Cousens , 396 Mass 254, 261 (1985). A complete failure of proof concerning an essential element in the non-moving party’s case renders all other facts immaterial Celotex at 323. In addition, “The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it offers differing versions of the truth which a factfinder must resolve at an ensuing trial.” Brennan v. Hendrigan , 888 F 2d 189, 191 (1st Cir 1989), citing Mack v. Great Atlantic and Pacific Tea Co ., 871 F 2d 179, 181 (1st Cir 1989). The Supreme Court has held that:
[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson v. Liberty Lobby, Inc. , 477 U S 242, 249-50 (1986).
When the court (or a Hearing Officer) considers the materials accompanying a motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs v Goode, 357 Mass. 449, 451 (1970), quoting United States v Diebold, Inc., 369 U.S. 654, 655 (1962). In addition, “all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.” Attorney General, et al. v. Robert W. Bailey et al., 386 Mass. 367, 370, quoting Gross v Southern Ry., 414 F.2d 292, 297 (5 th Cir. 1969).
In this matter, DMH and Parent have demonstrated that Boston has not supplied any evidence to support its contention that Student does not need a residential program in order to receive a FAPE and that the record submitted does shows no reasonable expectation of proving an essential element of Boston’s case. Where, as in this matter, the moving parties have met their burden, Boston must show the existence of a dispute as to material facts.
Boston asserts that Student’s educational needs can be met in a private day placement. It also asserts that Student requires a residential program for mental health reasons. The record shows however, a stipulation by Boston that Student can not access this private day placement unless that day educational component is in a setting that is in the same facility and integrated with his residential living situation (S1, Boston’s joinder brief). At the motion session requested by Boston, Boston had opportunity to dispute Parents’ assertion that neither she nor school personnel have been able to successfully transport Student from one location to another due to Student’s behavior problems in the bus and Students’ attempts to exit the car while it is moving at high speeds. Boston admits in its opposition that Student is difficult to transport from one location to another. See School’s October 17, 2002 Opposition to Summary Judgment and Dismissal. p. 4.
During the conference call on September 17, 2001 Boston was given an opportunity to file a cross claim against DMH for reimbursement for the residential portion for the Steven’s Home articulating its statement of issues in dispute and its theory for relief if Boston should prevail on its claim. Boston agreed to, (and the Hearing Officer incorporated that agreement into a ruling) file its cross claim by October 1, 2002. See Ruling September 17, 2002 (Attachment A). Although Boston asserted that residential services were needed for non-educational reasons, it did not present any evidence or any offer of proof as to the issues in dispute. Nor did it provide any theory of law or cite any regulations or policy to support its claims.
Here Boston agrees that Student requires an educational program that is intertwined with a residential school in order to receive FAPE. Boston’s assertion that Student requires a residential program to address his mental health needs is also not disputed. DMH agrees that Student is eligible for DMH residential services and offered them to Student. The record reflects and DMH does not dispute that it did not attend a TEAM meeting for Student and that a DMH case manager only contacted the family on one occasion. Parent has also admitted that it does not want to pursue DMH because there is no entitlement to DMH services under DMH laws or regulations and DMH even concedes that there should be such an entitlement. Boston however is not absolved of providing Student with residential services if he needs them in order to learn because Student is also eligible for DMH services. DMH’s actions also do not negate Boston’s obligations to provide a residential program to Student if he needs it for educational reasons. This responsibility exists even if Student also needs the same type of placement for safety or mental health reasons. See Abrahamson v. Hershman , 701 F.2d 273 (1983); David D. v. Dartmouth School Committee , 775 F2d 411 (1985), Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999).
Boston had, in the motion session for joinder, argued that it is not fair for it to assume responsibility for the cost of residential placement if Student is eligible for DMH residential services.5 This however, does not authorize the BSEA to create a cost sharing mechanism for effectuating such placements.
There will be matters where Boston (or another LEA) will be able to prove that it not be obligated to fund residential services if Student can be educated in a less restrictive environment but needs to live somewhere else for safety reasons or mental health reasons. There will also be situations where an agency other than an LEA can be ordered to provide a residential placement. Those are matters analogous to the situation in In re: Medford Public Schools , 7 MSER 75 (2001). In Medford the parties agreed that the student could make academic progress in the day school in which she had previously been placed, and to which all parties agreed she should return. She required a residential placement due to her assaultive behavior towards a sibling. That is not this case. Here the record is undisputed that Student needs to have his educational and residential setting in the same site in order to learn. That is a situation that requires Boston to develop an IEP for a residential program.
There are thus no material facts in dispute, and as such, Parent and DMH are entitled to judgment as a matter of law. Parent’s motion for summary judgment on the claim for development of an IEP for a residential program is GRANTED.6 DMH’s motion for dismissal is also GRANTED. Boston’s crossclaim is DENIED.
ORDER
Boston will pursuant to this ruling, develop an IEP for a residential program at the Steven’s Home.
By the Hearing Officer,
________________________
Joan D. Beron
Dated: December 20, 2002
1
A Hearing Officer may rule on requests or motions that may be made during the course of Special Education Appeals proceedings; Special Education Hearing Rule 8B11.
2
The Parties were asked whether Student required a residential program that was the same program and in the same facility as his day program. The Parties through Counsel indicated that Student did and confirmed during the July 18, 2002 conference call that they stipulated to this fact (Kurlan, Blumberg, Spanjaard).
3
Boston asserted this argument in its oral argument for its joinder motion. DMH did not dispute this.
4
There are no longer prototypes in the current regulations; the 502 prototypes referred to a range of special education services from the least to the most restrictive. The .5 (or 502.5) refers to a private day placement in the former 766 regulations and has been generally accepted by the Parties in this proceeding as a “short-hand” term to refer to a private day placement.
5
In August 2002, the Legislature, through Section 16A of St. 2002, c. 184 mandated that “the secretary of the executive office of health and human services convene an interagency children’s services team to establish effective means of communication among human services agencies and other entities, including school districts, to determine which agency or agencies within the jurisdiction of health and human services shall provide or contract for appropriate services to a child in cases when disputes arise among agencies over the delivery of services to a child or when such services are not being provided to a child.”… “The interagency teams may designate a lead agency to provide or contract for services and direct a designated agency to accept responsibility for the child and provide and contract for such services.” Regulations were to be completed in no less than thirty working days. To date no such regulations have been issued. The law also states that “nothing within shall be construed to alter individual education plan development processes, service provision or placement processes applicable to school districts or to alter existing due process rights and procedures under state or federal law.
6
Boston does not allege that the program at the Steven’s Home is inappropriate and placed him there after the Parent’s motion for an interim programming was allowed.