COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Boston Public Schools
BSEA # 06-5402
Ruling on Boston Public Schools’ Motion to Join The Department
of Mental Health
On July 5, 2006, Boston Public Schools (hereinafter, Boston) filed a Motion To Join The Department of Mental Health (DMH) in the above referenced matter. The DMH filed a Limited Appearance, a Motion for a one-week extension to file a response to Boston’s Motion for Joinder and a “Motion to Reschedule the Trial Date”, on July 12, 2006. Following a Telephone Conference call on July 12, 2006, an Order was issued on July 13 th granting the DMH’s request for a one week extension to file its response, and maintaining the previous dates of Hearing for August 1, 2 and 3, 20061 .
On July 18, 2006, the DMH filed a Revised Opposition to Boston’s Motion to Join, and a Memorandum in Support of the DMH’s Opposition to Boston’s Motion to Join the DMH. Parent did not submit a response to the Motion taking a position in favor of or against joinder. This Ruling is issued pursuant to the Motions and in consideration of the Memoranda submitted by the Parties. The factual information, which is not in dispute, was taken from the Parties’ memoranda.
FACTUAL INFORMATION:
1. Born on August 15, 1987, Student is a 19 year-old resident of Boston, Massachusetts. He has been found eligible to receive special education services and was placed by Boston at the Holden School, a Chapter 766 approved day school in Massachusetts, under an IEP that ran from March 2005 through March 2006.
2. Student has been hospitalized psychiatrically at Taunton Hospital since November 29, 2005. This is not Student’s only psychiatric hospitalization. Since the age of eight, Student has had eight psychiatric hospitalizations.
3. Student’s ongoing psychiatric issues include poor impulse control, irritability and aggression. He presents with a diagnostic picture which is notable for mood lability. This results in impaired judgment as well as impulsive and reckless behavior. Student’s behavioral problems include suicidal gestures, assault and battery, and destruction of property.
4. Student’s most recent psychiatric admission is the result of a judicial order pursuant to a section 15(b) remand (M.G.L. c.123) requiring Student to undergo a competency and criminal responsibility evaluation2 .
5. On January 15, 2006, Student was diagnosed with Bipolar Disorder and Attention Deficit Hyperactivity Disorder in addition to other disabilities.
6. Student’s clinicians at Taunton Adolescent and Family Treatment Program stated that Student “needs the 24-hour structure of a therapeutic residential school setting offering ongoing crisis intervention, [and] psychiatric and counseling services.”
7. Psychological testing conducted in December 2005 and January 2006 yielded the following scores: Full Scale IQ of 66, Performance IQ of 67, and Verbal IQ of 713 . In the past Student had involvement with the Department of Mental Retardation.
8. Student had involvement with the juvenile justice system, including two stays at DYS facilities in 2002 and 2003.
9. Boston has continued to offer Student a day placement at the Holden School under the March 2005 to March 2006 IEP, which Student rejected, asserting that he requires residential placement.
10. In February 2006, the DMH determined Student to be eligible for DMH services. Prior to the section 15(b) remand (M.G.L. c.123), Student had never received DMH services.
11. At present, Student continues to be hospitalized at the Taunton Adolescent and Family Treatment Program located on the grounds of Taunton State Hospital. He has declined to attend available classes at this location.
LEGAL STANDARD:
As discussed in Ruling In Re: Student v. Boston Public Schools , BSEA # 06-6542, issued on July 25, 2006, by this Hearing Officer,
The Massachusetts Special Education Regulations grant jurisdiction to the BSEA over State agencies in order to provide for the resolution of differences between parties regarding provision of services to special education students. 603 CMR 28.08(3).4 The Regulations provide that the BSEA may determine “in accordance with the rules, regulations, and policies of the respective agencies” that services must be provided “in addition to the IEP services to be provided by the school district.” 603 CMR 28.08(3). Whereas in the case at bar, participation of the particular state agency is sought after the request for hearing has been filed, said participation may be obtained by filing a motion for joinder of the additional party. The rules governing joinder of a party are provided in Rule 1J of The Hearing Rules for Special Education Appeals. Upon receipt of a motion, joinder of a state agency may be ordered under Rule 1J upon a finding that
1. complete relief cannot be granted by the originally named parties or
2. the third party has an interest in the matter and is so situated that the case cannot be disposed of in its absence.
Rule 1J further provides that factors to be considered in the determination of joinder are
1. risk of prejudice to the present parties;
2. the range of alternatives for fashioning relief;
3. the inadequacy of a judgment entered in the proposed party’s absence; and
4. the existence of an alternative forum to resolve the issues.
In order to join a state agency, the moving party “must be able to show, at least in a preliminary way, that it will be able to present evidence at a Hearing that may result in the entity being found responsible to offer some service…to the student.” In re: Boston Public Schools District , BSEA #02-4553 (2002, Figueroa.) If joinder is granted, the hearing officer may only order services consistent with the rules, regulations, and policies that govern the particular state agency. Any services ordered must fall within the array of services that the particular agency offers and there is a presumption that the student is eligible to receive said services. School districts are ultimately responsible for all types of placements required by a student for educational reasons, including residential placements, even if another state agency offers residential placements to its clients.5
Federal special education law and regulations require establishment of a mechanism for interagency coordination to resolve any disputes regarding responsibility for providing special education and related services to students where multiple public entities may share the responsibility for ensuring that students receive a FAPE. 20 U.S.C. §1412(12)(A); 34C.F.R. 300.142(a).
Boston’s Position:
Boston contends that the DMH should be joined due to DMH’s determination of eligibility of Student, his mental health issues and related disabilities. It argues that Student will likely continue to be a life-long client of the DMH, and the DMH has specialized knowledge and information pertaining to Student. According to Boston, Student has been diagnosed with “Qualifying Mental Disorder[s],” which are: Attention Deficit Hyperactivity Disorder and Bipolar Disorder6 . These qualify Student to receive the DMH services as an adult and /or as a child/ adolescent7 . Boston asserts that the residential component of Student’s placement is the responsibility of the DMH. Boston asserts that the circumstances of this case present the type of scenario contemplated under Federal law and the Massachusetts Special Education Regulations. Ensuring that all special education and related services necessary to achieve FAPE are provided or can be ordered requires participation of the DMH at the Hearing. Boston submits that the BSEA has been granted authority to order the DMH to provide the residential component of Student’s placement as an appropriate support service consistent with the DMH statute, regulations and policies. See In Re: Medford Public Schools , BSEA # 01-3941 (2002, Crane). Since the DMH may be found to have responsibility regarding the residential portion of Student’s placement, it has an interest in this matter and is a necessary party. The Hearing cannot proceed in the absence of the DMH because the BSEA could find that Student requires residential placement but that Boston is not responsible for the residential portion. If all of the necessary parties are not before the BSEA, the case could not be fully adjudicated, and another hearing involving the same factual information would have to be conducted. Boston asserts that joinder is, therefore, appropriate.
DMH’s Position:
In its response, the DMH states that Boston believes that it is only responsible to offer Student a day placement and that the residential piece is needed for psychiatric reasons. Student, however, considers residential placement essential. The DMH states that it is always available to present information regarding the services it is able to offer children and that it does not need to be a party to do so. The DMH maintains that if Student needs residential placement, it is for educational reasons and the provisions of 603 CMR 28.08(3), referencing 34 CFR 300.142 should not be used to authorize cost shares for programs and related services that should be the responsibility of a Local Educational Agency (LEA.) Boston’s assertion that Student’s needs are based on emotional deficits is an insufficient reason to divert the LEA’s responsibility to provide a program that affords a student a FAPE. The DMH states that an emotional disability is one of the categories that can qualify a student to receive special education services. MGL c. 71B §1; 603 CMR 28.02(f); 208 CMR 28.05(d)2. Residential placement is among the educational options for which LEAs may be responsible. DMH argues that the regulatory provisions require that the BSEA first determine what program or services the school system is required to provide before it considers additional services the student needs from another agency.
In its memorandum, the DMH maintains that the fact that it is currently providing Student in-patient services pursuant to a forensic commitment does not shift the responsibility of the LEA to provide Student a FAPE. Furthermore, the existence of a court ordered inpatient forensic commitment does not mean the BSEA can order the DMH to cost-share residential placement. The DMH asserts that the case can be heard without it and that if at a later time a determination were made that it bore responsibility, the reimbursement issue could then be handled. 34 CFR 300.142. The DMH also states that Boston has not suggested a service unique to DMH which would make its presence essential, nor did Boston cite any DMH statute, regulation or policy that could be construed as requiring the DMH to participate in a cost-share of Student’s educational placement.
The DMH further argues that eligibility alone is not sufficient to require it to participate in the BSEA proceeding and states that the joinder rule applies in a very limited number of cases. The DMH states that it is not a necessary party because if the BSEA were to decide that Student requires residential programming to address educational needs, the responsibility to offer said program would fall on the LEA. If the finding were that Student required only a therapeutic day placement, the DMH would not be a necessary party. Therefore, adjudication of this matter without the DMH’s participation would not cause prejudice to the parties. As such, the DMH asserts that it should not be joined.
RULING:
In reaching a determination in this matter I note that one of the threshold questions in ascertaining whether the DMH may be a necessary party is whether Student has been determined eligible to receive the DMH services. Boston asserts he has and the DMH does not disagree, rather it argues that it became involved with Student as a result of a court order. The manner in which it became involved is irrelevant to the threshold question. The fact is that Student was determined eligible, and the DMH is currently providing services. See In Re: Plymouth Public Schools , BSEA #06-2584, 12 MSER 33 (2006, Crane).
While Boston may have only sought to join the DMH upon belief that Boston would not be responsible for the residential portion of Student’s placement, residential placement is not the only service that DMH could be found responsible to provide. The DMH may be responsible for the residential portion of Student’s placement, and it may also be in a position to offer other services that are within its purview and not within the purview of the LEA. I find that the DMH does have an interest in this action and that administrative expediency calls for all issues regarding Student’s placement to be adjudicated simultaneously. Whether or not the DMH is ultimately responsible to offer any services is a question that will be decided at the Hearing. I am not persuaded that given Student’s profile, history and the circumstances of this case, the matter can be disposed of in the absence of the DMH. The DMH is a necessary party and as such it must be joined.
In consideration of the facts of this case and the arguments proffered by Boston and the DMH, I find that Joinder of DMH is warranted.
ORDER:
1. Boston’s Motion To Join the DMH is ALLOWED .
2. At present, the Hearing is scheduled to proceed as previously scheduled on August 1, 2 and 3, 2006 at 9:30 A.M. at the BSEA, 11 Dartmouth St., First Floor, Malden, MA.
3. At Boston’s request the Parties are granted an extension to submit exhibits and witness lists until Friday July 28, 2006.
Any concerns of the Parties will be discussed during the telephone conference call on July 26, 2006.
So Ordered by the Hearing Officer,
_________________________________
Rosa I. Figueroa
Dated: July 26, 2006
1
The Order mistakenly states that the request to postpone the Hearing is “Granted” where it should have stated denied. The Parties however, had been made aware during the telephone conference call of July 12 th that the Hearing would proceed on August 1, 2 and 3.
2
Student was arrested for stealing a motor vehicle and refusing to stop for the police. At present he has been found to lack competency to stand trial and has been found not criminally responsible.
3
The DMH did not provide the name of the cognitive test administered that produced these scores. The scores however, would appear to be consistent with the Wechsler Intelligence Scale for Children (WISC.)
4
See Chapter 159, section 162 of the Acts of 2000, amending M.G.L. 71B§3.
5
See In Re: Westford Public Schools , BSEA #05-0621, 10 MSER 541, 551 (2004, Beron.)
6
Bipolar disorder falls under the mood disorder category as defined in the DSM-IV.
7
According to Boston, Student was 18 ½ when he applied for services and since adult services start at age 19, DMH recommends that applicants complete the adult application because if they meet the adult eligibility criteria they also meet the child/adolescent criteria and may receive services under either.