Student v Brockton Public Schools – BSEA #07-6970



<br /> Student v Brockton Public Schools – #07-6970<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Student v. Brockton Public Schools BSEA # 07-6970

Ruling on Parents’ Motion for Summary Judgment and Brockton Public Schools’ Opposition to Student’s Motion and Cross Motion for Summary Judgment

On August 20, 2007, Parents in the above-referenced matter filed a Motion for Summary Judgment. In it, Parents seek a determination from the BSEA that Brockton Public Schools (Brockton) is found responsible to fund the residential portion of Student’s placement if the Department of Social Services (DSS) ceases to fund that portion of Student’s placement. On August 29, 2007, Brockton filed a Motion in Opposition to Parents’ Motion for Summary Decision and Cross Motion for Summary Decision in the above referenced matter. Parents’ Motion in Response to Brockton’s Motion for Summary Decision and Cross Motion for Summary Decision was received on October 1, 2007.1

This ruling is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under those statutes, as well as in consideration of Parents’ Exhibits one through nine, and the motions and arguments proffered by the Parties.

Facts:

1. Student is a six-year-old first grade, resident of Brockton, MA. (PE-2) Student is eligible to receive special education services pursuant to federal and state special education laws and regulations. ( Id .)

2. Student has been in the temporary custody of the DSS under a Care and Protection action in the Brockton Juvenile Court since on or about December 14, 2006. (PE-5) Parents retain educational decision-making authority. The goal for the family remains reunification by the end of 2007. (PE-5; PE-6)

3. Student has attended the Walker Home and School, as a residential student, under a cost-share agreement between Brockton and the DSS since February 2007. (Brockton’s brief)

4. Student has been diagnosed with Attention Deficit/Hyperactivity Disorder, and Post Traumatic Stress Disorder. His cognitive ability falls in the borderline range. He suffers from asthma for which he uses an Albuterol inhaler and a nebulizer as needed; he has enuresis and encopresis, and suffers of seasonal allergies. A medical evaluation conducted by Dr. Christopher Bellonci on March 6, 2007 found Student to present severely to extreme chronic stressors. (PE-2; PE-3; Parent’s brief)

5. Via letter dated March 27, 2007 Attorney Andrew Norton (involved in the Care and Protection Proceeding) informed Parents that “DSS has informed this office that it is their policy that they will not fund the residential cost portion of [Student’s] treatment at the Walker School if they do not have legal custody of said [child].” (PE-1)

6. On April 10, 2007, Parents appeared before Judge Corbett of Brockton Juvenile Court. (PE-9) The court transcripts reflect that Judge Corbett raised the question of whether DSS could fund all or part of Student’s placement without having custody of Student. (PE-9)

7. Student’s IEP for the period covering May 8, 2007 through May 7, 2008, states that Student is placed at the Walker Home and School under a cost-share agreement with DSS. (PE-2; PE-3) This IEP states that Student presents with an emotional disability. Other educational needs involve social-emotional, communication, and behavioral issues. The educational placement determination sheet in the IEP calls for Student’s placement in the day school. Parents accepted the IEP program and placement on June 15, 2007. (PE-2)

8. On July 16, 2007, Diane Curran, Deputy General Counsel for DSS, wrote stating that DSS was considering requesting appointment of an educational surrogate parent for Student. (PE-8) She further stated that no custody hearing was pending, but that the custodial arrangements would remain “as is.” (PE-8)

9. The Parties agree that Student’s current placement under the accepted 2007-2008 IEP is appropriate. The Parties also have no disagreement regarding the current cost-share agreement between DSS and Brockton. (See Parents’ Motion for Summary Judgment)

Position of the Parties:

Parents’ Position:

Parents move for summary judgment in their favor relying on 20 U.S.C. 1412 (A)(12)(B)(i) and (ii)2 of the IDEA regarding the obligation of public agencies. Parents stated that DSS is paying for the residential portion of Student’s placement because it currently has temporary custody of Student. According to Parents, DSS has maintained that it will cease payment of the residential component of Student’s placement if it loses custody of Student, or if a Voluntary Placement Agreement between DSS and Parents is not in existence. Parents seek a decision that if DSS discontinues funding for the residential component, Brockton is responsible to cover this expense in order to afford Student a FAPE. Parents agree that neither party wishes to contest the appropriateness of the current placement, which has been funded under a cost-share agreement between Brockton and Parents since February 2007. Parents seek clarification regarding which is the responsible agency in case one of the parties to the cost-share agreement fails to perform.

Parents further stated that while DSS has temporary custody of Student, parental rights have not been terminated and Parents retain educational decision-making authority. Therefore, the BSEA has jurisdiction. Parents are not seeking a determination from the BSEA regarding custody of Student. Parents further state that they will not enter into a voluntary placement agreement with DSS because of 110 CMR 4.10 through 4.14 of the regulations relating to the authority of DSS. The aforementioned regulations provide that a permanency hearing will be held within 12 months of the date on which the child entered DSS custody, or within 60 days of the date in which DSS obtains court custody, whichever date is later. They are however, concerned that given DSS’ policy to require custody in order to fund a program, that DSS will discontinue funding of the residential portion of Student’s programming if the agency loses custody of Student.

Parents further state that DSS’ regulations prevent it from entering into voluntary placement agreements for the sole purpose of sharing the costs of residential placement with a school district. 110 CMR 7.402(2). However, DSS’s regulation 110 CMR 7.402(3) addressing the signature authority on cost-shared agreements provides that “education plans (IEPs) raising cost-sharing issues and cost-sharing agreements will be binding upon the Department only if signed by a Department Area Director or his/her designee.” Parents state that DSS has signed an IEP, which covers a year of services for Student. They therefore, maintain that should DSS stop funding Student’s placement, it would be in violation of the IEP it signed with Brockton, and the contract it signed with the Walker Home and School, which expires on May 7, 2008.

Parents state that as of April 2007, the parties in the custody matter involving Student, appearing before Brockton Juvenile Court, continued to support a cost-share agreement under Student’s placement with DSS, which should survive even if DSS loses custody of Student. According to Parents, the question before that forum became whether the DSS could fund all or any part of a child’s placement absent custody of the child.

Also, according to Parents, if DSS stopped funding the program, Brockton would be responsible to cover all of the expenses pursuant to 20 U.S.C. 1412 (A)(12)(B)(ii). Since Student is and has been in the custody of DSS, and since DSS has been paying for the residential portion of Student’s program at the Walker Home and School, Parents reason that the BSEA may order Brockton to cover the residential portion of Student’s placement. Furthermore, Parents state that there was no requirement between the Parties, established through the IEP, that called for continued custodial placement of Student with DSS in order for DSS to be obligated to pay for Student’s residential placement component.

Parents assert that DSS is contractually responsible to pay the residential portion of Student’s placement because DSS signed off on Student’s IEP3 which calls for residential placement. This obligation therefore, continues until Student’s IEP expires or the Team is reconvened and a new IEP is drafted and accepted. Therefore, DSS cannot unilaterally change Student’s placement.

In its argument, Parents state that they are aware of their options if DSS were to exercise its “threat” to cut funding, that is, Parents would invoke the “stay-put” provision of IDEA, take the issue to Juvenile Court, or obtain an injunction, among other options. However, cognizant of the jurisdiction of the BSEA under 603 CMR 28.08(3)4 , Parents state that they have opted to pursue recourse through the BSEA.

Regarding “ripeness”, in the response filed by Parents on October 1, 2007, Parents argue that since Student has been placed at the Walker School under a cost-share agreement between Brockton and DSS since early 2007, the matter falls under the jurisdiction of the BSEA. Parents further state that this is so because the question raised by Judge Corbett in Student’s Care and Protection matter in Brockton Juvenile Court is whether DSS could continue to pay for Student’s placement if it lost temporary custody of Student. In making this argument, Parents rely on 20 U.S.C. 1412 (A)(12)(B)(i) and specifically (ii)5 addressing the Obligation of a Public Agency,

Reimbursement for services by public agency. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local agency [or state agency responsible for developing the child’s IEP] shall provide or pay for such services to the child.

Similar language is embodied in the IDEA regulations.6 34 C.F.R. §300.154(1)(b). Parents assert that DSS will withdraw funding of the residential portion of Student’s placement if it is not awarded full custody of Student at the next court hearing.

Parents further stress that the IDEA regulations provide that the “local educational agency [LEA] or state agency is authorized to claim reimbursement for the services from the public agency that failed to provide or pay for such services, and such public agency reimburse the local educational agency or state agency pursuant to the terms of the interagency agreement or other mechanism described in [20 U.S.C. 1412 (A)(12)(A)(i)] according to the procedures established in such agreement pursuant to subparagraph (A)(ii).” According to Parents, the regulation anticipated the aforementioned issue and provided a remedy to the aggrieved party, that is, the local educational agency. Therefore, to prevent disruption of Student’s programming the BSEA must enforce 20 U.S.C. 1412 (A)(12)(B)(ii). The school district can later move forward to obtain reimbursement from DSS. This would render the issue of funding moot according to Parents. Since the federal government envisioned the situation described by Parents, Parents are requesting that “Brockton’s Motion be denied and that the BSEA [make a finding consistent with] section 20 U.S.C. 1412 (A)(12)(B)(ii).” (See Parents’ brief)

Parents also argue that DSS signed an interagency agreement, the IEP, and also an agreement with the Walker Home and School, to continue funding Student’s program for approximately one year. Parents state that Brockton would therefore, have justification to secure funding from DSS through “breach of contact.” Parents assert that their only concern is that Student’s services are not disrupted as a result of funding issues involving DSS and the LEA. They further state that FAPE provide “at no cost to parent”, and the opposite would be a violation of Student’s rights under the IDEA.7 For Parents, the issue has always been clear and is only muddied by questioning which agency or LEA is responsible to fund Student’s education. In Parents’ view, the issue was defined by the Brockton Juvenile Court on April 10, 2007, when funding was defined as “cost-sharing.”

Regarding the relationship between Parents and DSS, Parents clarified that according to a letter by Diane Curran, Esq. dated July 16, 2007, DSS is not seeking custody of Student and that DSS is only “considering” whether to seek appointment of an educational surrogate parent. The Care and Protection proceeding was continued until October 2007, at which time, according to Parents, the only issue before the judge will be cost-share of Student’s educational placement.

Therefore, Parents ask that the BSEA order Brockton to fully fund the Walker School Program “ in the event the residential funds are discontinued by DSS .” (emphasis added) Parents states that Brockton may then exercise its right to reimbursement through the courts as explained above.

Brockton’s Position:

Brockton states that Student, who is in the custody of DSS, has been attending the Walker Home and School under a cost-share agreement with no expiration date. DSS and Walker Home and School personnel are working toward returning Student home on or about November 2007. In its brief, Brockton framed the issues as follow:

1. Whether Plaintiff’s claim lacks ripeness;

2. Whether the BSEA lacks jurisdiction to adjudicate challenges to DSS Regulations;

3. Whether stay-put applies to the DSS placement of Student at Walker School;

4. Whether DSS is contractually obligated to provide funding for Student’s residential placement during the pendency of the accepted IEP.

Brockton asserts that there is no factual dispute between the parties but rather the contested issues are issues of law, and therefore, the matter is ripe for the BSEA to enter summary judgment in favor of Brockton.

Brockton asserts that this matter is not ripe, that is, “the timing of presentation of an issue to a court is so premature as to unnecessarily entangle the court in the resolution of an issue predicated upon a mere contingency”8 . Parents seek an order from the BSEA that in the event that custody of Student is returned to Parents, and if DSS stops funding Student’s residential placement, that Brockton is ordered to fund said placement. Brockton argues that Parents’ request presents multiple conjectures none of which has yet occurred. Brockton further states that it is not possible to predict when and if all of Parents’ assumptions will come to play. Therefore, the case is not ripe and should be dismissed.

Brockton also states that the BSEA has limited jurisdiction and indeed lacks jurisdiction to adjudicate challenges to DSS Regulations. The BSEA determinations regarding state agencies must be made in accordance with DSS regulations and according to Brockton, Parents’ Motion for Summary Decision would amount to a challenge to the DSS regulations regarding Voluntary Placement Agreements, as well as the timeframe to conduct permanency hearings. Brockton explains that according to Parents, they must sign a voluntary placement agreement if they wish to ensure that DSS will continue to fund the residential portion of the Walker Home and School placement, if DSS loses or petitions to have custody of Student returned to Parents.

Brockton points out that Parents admit to having the ability to proceed in other forums to obligate DSS to continue to fund Student’s program, were DSS to stop paying. Brockton also notes that Parents did not join DSS.

Brockton further asserts that the Department of Education has recognized that DSS can make clinical decisions to place children residentially pursuant to DSS standards, which do not involve the educational benefit to the child.9 See Administrative Advisory SPED 2004-4 . Brockton states that Parents presented no evidence to show that Student’s residential placement is based upon an educational special need. To the contrary, according to Brockton, DSS made the decision to place Student at the Walker Home and School for clinical reasons. Furthermore, Parents accepted the proposed IEP, which called for Student’s participation in the day program at Walker Home and School. (See PE-2) According to Brockton, the IEP is silent regarding Student’s need for residential placement for educational reasons. As such, Parents’ challenge to DSS’ clinical decision regarding custody and residential placement of Student fall outside the jurisdiction of the BSEA.

Brockton argues that stay-put applies to the DSS placement of Student at Walker School. It argues that 20 USC §1415(a) applies to “any state educational agency, state agency, or local educational agency that receives assistance under this subchapter.” Id . Therefore, all agencies that provide educational and related services to disabled students, including DSS, are subject to the procedures under IDEA. Brockton states that this was the conclusion reached in Southern Berkshire Regional School District , 39 IDLER 83 (Byrne, 2003). Furthermore, while the stay-put provisions under IDEA do not specifically refer to state agencies, the BSEA has held that stay-put provisions should apply to residential placements cost-shared by DSS under certain circumstances. Therefore, Brockton asserts that DSS would be responsible to fund Student’s residential placement under the stay-put provision, hence, the BSEA has jurisdiction to hear any dispute arising there from.

Brockton asserts that DSS is contractually obligated to provide funding for Student’s residential placement during the pendency of the accepted IEP and for the duration of the IEP, that is, until May 7, 2008. Brockton states that this is particularly so, since Parents specifically stated that they do not contest Student’s placement or services. In making this argument, Brockton relies on a previous BSEA decision, in which DSS was obligated to fund a student’s summer program pursuant to a contract it voluntarily entered into with another agency, in which DSS agreed to provide special education and related services to a student. See In Re: Jeremy L ., BSEA #93-2353 (Apgar, 1993).

Brockton recognized the split among hearing officers at the BSEA regarding interpretation of settlement agreements. Brockton opined that most instances where BSEA hearing officers seemed reluctant to enforce settlement agreements between parties involve situations where the parties disputed a student’s placement or services. Here, the parties do not contest Student’s placement or services, which call for a cost-shared placement between Brockton and DSS. Brockton argues that the facts in the case at bar create a unique scenario, and that the BSEA has jurisdiction to address the parties’ contractual obligations under the accepted IEP.

Lastly, Brockton states that DSS is bound by an inter-agency cost-sharing agreement and cost-shared IEP, in accordance with 110 CMR 7.402(3). The BSEA would therefore have jurisdiction to find that DSS intended to be bound by the inter-agency agreement and IEP through May 7, 2008. Therefore, Brockton should not be responsible to fund the residential portion of Student’s placement through May 2008. Brockton asserts that such a decision would not violate the jurisdictional limitation of the BSEA because it would be entering a determination “in accordance” with the regulations of DSS.

Ruling:

The Adjudicatory Rules of Practice and Procedure, applicable to BSEA proceedings10 provide that summary decisions may be granted when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.11 A party may obtain summary judgment if it can show that the opposing side has no reasonable expectation of proving the essential elements of his/her case.12 Once the party seeking summary judgment asserts that no genuine issue of material fact exists, the burden shifts to the non-moving party to identify the facts that demonstrate that a trial-worthy issue exists. Nat’l Amusements, Inc. v. Town of Dedham , 43 F 3d 731, 735 (1 st . Cir. 1995). Addressing motions for summary decision, the First Circuit Court of Appeals explained,

This burden is discharged only if the cited disagreement relates to a genuine issue of material fact. In this context, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party and “material” means that the fact is one that might affect the outcome of the suit under the governing law. This requirement has sharp teeth: the [non-moving party] must present definite, competent evidence to rebut the motion. Such evidence cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a fact finder must resolve at an ensuing trial. As the [United States Supreme] Court has cautioned, evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Wynne v. Tufts University school of Medicine , 976 F.2d 791, 794 (1 st Cir. 1992).13

As Brockton correctly asserts, the facts in this case are uncontested. The parties agree that Student is eligible to receive special education services; he is currently in the temporary custody of DSS; Parents retain educational decision-making authority; Student is currently receiving services under an accepted IEP at the Walker School that calls for day-placement; DSS is funding the residential portion of Student’s placement under a cost-share agreement with Brockton; and the parties agree that the placement is appropriate. There is no dispute between the parties regarding the aforementioned facts, and as a matter of law, summary judgment is warranted in favor of Brockton as explained below.

In issuing this determination, I first address Parents’ arguments and then Brockton’s in the order in which Brockton outlines its case. I also point out that the arguments, issues, and concerns discussed here were previously discussed orally with the Parties during a telephone conference call on August 8, 2007, although this ruling provides greater detail and analysis.

Parents state that the IDEA establishes obligations between state agencies regarding funding for educational placement of children, and argues that Brockton should be mandated to fully fund Student’s placement in the Walker Home and School if DSS stops funding the residential portion of Student’s placement as a result of Parents’ decision not to sign a voluntary agreement for custody of Student with DSS. Parents further argue that once Brockton begins funding the residential portion of the placement, currently being funded by DSS, it can seek reimbursement from DSS under the regulations stated below, as per the current cost-share agreement between them.

Parents rely on 20 USC §1412 (A)(12)(B)(i) and (ii) and while they are correct that the above regulations address the responsibilities of state agencies vis a vis the education of eligible children, none of the eventualities contemplated by Parents have yet come to pass, nor is there any dispute between them at the present time regarding the appropriateness of the IEP program and placement accepted for Student. Furthermore, Parents presented no evidence to show that DSS’ placement of Student was made on an educational rather than a clinical basis. This brings me to the arguments raised by Brockton in which I will finish addressing Parents’ concerns.

Ripeness:

Brockton is correct that Parents’ claim lacks ripeness. None of the events contemplated by Parents has occurred, and it is impossible to predict if any, or all, of them will occur, or when they would occur. Brockton has stated that it is cognizant of its responsibility to reconvene Student’s Team when and if custodial arrangements change, to make appropriate modifications to Student’s IEP consistent with the federal IDEA mandate to provide Student a Free Appropriate Public Education (FAPE) in the least restrictive environment. Parents seek that the BSEA ordering Brockton to fully fund Student’s residential program and placement in the event that DSS discontinues payment . Parents have failed to show that Student’s program and placement are in jeopardy. Parents in essence seek relief upon facts that are not sufficiently developed and may never come to pass, for issuance of a proper ruling.14 See Johnson v. General Electric , 840 F. 2d 132, 136 (1 st Cir. 1988). See also, George Fischer Foundry Sys., Inc. v. Adolph H. Hottinger Maschinenbau GmbH , 55 F 3d 1206, 1210 (6 th Cir. 1995); Bigelow Michigan Dep’t of Natural Res ., 970 F2d 154, 157 (6 th Cir. 1992). Parents’ case is not ripe and as such cannot be heard.

BSEA’s jurisdiction to adjudicate challenges to DSS Regulations :

Under 603 CMR 28.08 (3) the jurisdiction of the BSEA over state agencies is limited and must be exercised in accordance with the regulations that govern those agencies.

Brockton is correct that in framing the issues, Parents raised the question of who will bear financial responsibility for Student’s residential placement “if DSS exercises its threat” and “fails to provide or pay for services.” In doing so, Parents admit that there is no dispute regarding Student’s program and placement, leaving only the question of DSS’ policies not to fund residences for children who are not in its care or custody. If Parents’ intent in so doing is to somehow influence DSS policy regarding custodial arrangements in order to secure payment, this is not something over which the BSEA has jurisdiction.

Furthermore, DSS is not a party to this action and as such, the BSEA has no jurisdiction to order it to do anything. I note that Parents affirm that they may seek relief against DSS in other forums were DSS to violate its legal obligations toward Student.

Additionally, the BSEA’s jurisdiction to order state agencies to provide services to a student depends on whether the service to be provided is educational. Also, the BSEA cannot order DSS to provide special education services as those services fall within the province of school districts. In the case at bar, Parents presented no evidence to show that Student’s residential placement is based upon his educational special need. There is no information to ascertain whether DSS may have placed Student at Walker Home and School for clinical reasons. Given that Parents accepted an IEP that called for participation in the day program, there is no evidence to conclude that the residential portion is needed for educational reasons. (See PE-2) As Brockton points out, the IEP is silent regarding Student’s need for residential placement for educational reasons. If Parents seek to challenge a clinical decision made by DSS regarding custodial living arrangements, that issue falls outside the jurisdiction of the BSEA.

I note that during the conference call of August 8, 2007, Parents’ advocate was asked if she wished to pursue the question of whether Student required residential placement for educational reasons, and she declined. Parents’ advocate was advised that this was an issue over which the BSEA had jurisdiction. I further explained that the BSEA could only order Brockton to fund the residential portion of Student’s placement if Parents could meet said burden at hearing. As stated earlier, the issue over which the BSEA has jurisdiction was also raised by Hearing Officer Byrne in a ruling dated June 19, 2007, in the instant case.

Application of stay-put to DSS’ placement of Student at Walker School :

The provisions of IDEA may apply to “any state educational agency, state agency, or local educational agency that receives assistance under this subchapter” when they provide educational and related services to disabled students, as Brockton correctly argues. 20 USC §1415(a). As such, the stay-put provisions under IDEA, may be applicable in certain situations, where the agency, agrees to provide the special education and or related service. DSS is one of those agencies. At least in one previous occasion, the BSEA held DSS responsible for funding a student’s summer program and transportation under the stay-put provision of the IDEA. In that case DSS had voluntarily entered into an agreement to provide the services for the student the previous year.15 In Re: Jeremy L ., BSEA #93-2353 (Apgar, 1993) A similar finding was entered by the federal district court in New York in King v. Pine Plains Central School District , 918 F. Supp 772 (NY 1996). In that case, the court stated that the stay-put provisions of IDEA could apply to residential placements made by DSS. King v. Pine Plains Central School District , 918 F. Supp 772 (NY 1996).

In the case at bar, Student’s IEP calls for a day-placement with participation by DSS for cost-sharing the residential placement, as stated in page one of the IEP. (PE-2) The evidence submitted by Parents shows that DSS is not one of the signatories to the IEP, but it is and has been funding the residential portion via an inter-agency agreement with Brockton. As such, should DSS stop funding this placement in the future the question of Student’s stay-put rights could be brought before the BSEA. For the purpose of defining Student’s stay-put rights, and DSS’ responsibilities under said provision of the IDEA, the issue of whether DSS made a clinical placement determination instead of an educational placement determination would have to be considered16 , and DSS would have to be a party to that action.17

Since the BSEA has jurisdiction over DSS regarding special education related issues, under 603 CMR 28.08 (3), the BSEA could hear a dispute between the parties, if one were to arise in the future, at which time orders could be entered against DSS if appropriate, so long as the determination was made consistent with the internal standards and regulations applicable to DSS. However, this issue is premature since DSS has not stated that it will cease funding of Student’s residential placement. A determination of Student’s stay-put rights at this juncture is therefore, not appropriate.

Whether DSS is contractually obligated to provide funding for Student’s residential placement during the pendency of the accepted IEP :

The parties agree that at present an inter-agency agreement exists between DSS and Brockton regarding Student’s placement. Brockton argues that DSS is therefore, contractually obligated to fund Student’s residential placement during the life of the IEP, that is, through May 7, 2008. (PE-2)

In its argument, Brockton points out that the BSEA hearing officers have been reluctant to enforce settlement agreements in situations where the parties dispute a student’s placement or services. Brockton then stresses that in the case at bar the Parties do not contest Student’s placement or services, under the cost-share agreement for placement of Student. Brockton then states that these facts create a unique scenario, which allows the BSEA to address the Parties’ contractual obligations under the accepted IEP. Enforcement of the inter-agency cost sharing agreement and cost-share IEP, to which DSS is bound under 110 CMR 7.402(3), would result in DSS being responsible for the residential placement through May 2007, which according to Brockton would be a determination “in accordance” with the regulations of DSS.

I am not persuaded by Brockton’s assertion that the BSEA has jurisdiction to enforce contractual obligations between parties. The BSEA’s jurisdiction is limited and must be exercised consistent with 603 CMR 28.08(3). The BSEA lacks jurisdiction to enforce contracts , therefore, any dispute between the parties regarding enforcement of the inter-agency agreement may be brought before a court with pertinent jurisdiction.18

As previously stated, at this time, Parents’ only recourse before the BSEA would be to seek a determination as to whether Student requires residential placement for educational reasons, and if so, whether Brockton would be fully responsible for said placement.19 Parents have specifically declined to raise this issue reiterating their sole concern of whether Brockton is obligated to fund the residential portion of Student’s placement at the Walker School if DSS stops funding this placement, pursuant to 20 U.S.C. §1412 (A)(12)(B)(i) and (ii).

For all of the reasons stated above, Parents’ Motion for Summary Judgment is DENIED . Brockton’s Motion for Summary Decision is GRANTED .

So Ordered by the Hearing Officer,

_________________________________________

Rosa I. Figueroa

Dated: November 7, 2007


1

A BSEA Order issued on September 17, 2007, granting Parents’ request for an extension of time to submit a response to Brockton’s Motion for Summary Decision until the close of business on September 29, 2007. Since the 29 th was a Saturday, and Parents’ Response was received at the BSEA the morning of October 1, 2007, all of their submissions were considered.


2

In their brief, Parents refer to the above-referenced section of the statute as 612 (a)(12)(B)(i) and (ii). This was the citation provided prior to re-authorization of IDEA 2004. The correct citation is 20 U.S.C. §1412 (A)(12)(B) et seq. Parents also rely on 20 U.S.C. §1412 (A)(12)(A) et seq.


3

The signature page on the IEP submitted by Parents, PE-2, does not contain the signature of any representative from DSS. (PE-2)


4

“Bureau of Special Education Appeals: Jurisdiction. In order to provide for the resolution of differences of opinion among school districts, private schools, parents and state agencies, the Bureau of Special Education Appeals, located with the Department, shall conduct mediations and hearing to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR §300.142(a). The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the Department of Social Services, the Department of Mental Retardation, the Department of Mental Health, the Department of Public Health, or any other state agency or program, in addition to the IEP services to be provided by the school district. Mediations and hearings shall be conducted by impartial mediators and hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing or mediation and who are employed to conduct those proceedings.” 603 CMR 28.08(3).


5

20 U.S.C. §1412 (A)(12)(B)(i) and (ii) addressing the obligation of public agencies:

I. In general.– If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy pursuant to subparagraph (A), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in section 602(1) [20 USCS §1401(1)] relating to assistive technology devices related services, 602(2) ) [20 USCS §1401(2)] relating to assistive technology services, 602(26) ) [20 USCS §1401(26)] relating to related services, 602 (33) ) [20 USCS §1401(33)] relating to supplementary aids and services, and 602(34) ) [20 USCS §1401(34)] relating to transition services) that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or trough contract or other arrangement pursuant to subparagraph (A) or an agreement pursuant to subparagraph (C).

II. Reimbursement for services by public agency.– If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local educational agency (or State agency responsible for developing the child’s IEP) shall provide or pay for such services to the child. Such local educational agency or State agency is authorized to claim reimbursement for the services from the pubic agency that failed to provide or pay for such services pursuant to the terms of the interagency agreement or other mechanism described in subparagraph (A)(i) according to the procedures established in such agreement pursuant to subparagraph (A)(ii).

20 U.S.C. §1412 (A)(12)(C) goes on to explain that the requirements of subparagraph A may be met through state statute or regulations, signed agreements between agencies that clarify the responsibilities of each agency, or other appropriate written methods determined by the Chief Executive Officer of the State (the Governor of Massachusetts) or his/her designee, approved by the Secretary of the federal Department of Education.


6

See 34 C.F.R. §300.154(1)(b), Methods of ensuring services: Obligations of non educational public agencies (1)(i) “If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under state policy or pursuant to paragraph (a) of this section, to provide or pay fro any services that are also considered special education of related services (such as, but not limited to, services described in Sec. 300.5 relating to assistive technology devices, Sec. 300.6 relating to assistive technology services, Sec. 300.34 relating to related services, Sec. 300.41 relating to supplementary aids and services, and Sec. 300.42 relating to transition services) that are necessary for ensuring FAPE to children with disabilities within the state, the public agency must fulfill that obligation or responsibility, either directly or through contract or other arrangements….”; (2) “ If a public agency other than an educational agency fails to provide or pay for the special education and related services described in paragraph (b)(1) of this section, the LEA (or State agency responsible for developing the child’s IEP), must provide or pay for this services to the child in a timely manner. The LEA or State agency is authorized to claim reimbursement for the services from the non-educational public agency that failed to provide or pay for these services and that agency must reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism described in paragraph (a) of this section.”


7

In their brief, Parents specifically stated: “This also begs the question regarding ‘at no cost to the parents’ and FAPE and if denying this motion in favor of the child, would be a violation of his rights under IDEA.”


8

Hudson County News Co. v. Metro Associates, Inc ., 141 FRD 386, 390 (D. Mass 1992).


9

“Once the child is in DSS care or custody, DSS has the authority to determine where the child lives. DSS places children in residential schools following clinical determination, based upon diagnostic and other assessment information, that the child requires such a setting. DSS is making a residential placement but is not making a special education residential school placement as this term is used in the special education law… DSS does not make special education placement decisions.” Administrative Advisory SPED 2004-4.


10

801 CMR 1.01(7)(h) which govern BSEA proceedings pursuant to 603; CMR 28.08(5)(b).


11

See also Rule 56(c) of the Federal Rules of Civil Procedure.


12

See Kourovacilis v. General Motors Corp ., 410 Mass 709 (1991).


13

See Boston Public Schools and Albert , 12 MSER 221 (Crane, 2006).


14

“It is unwise to encourage lawsuits before the injuries resulting from the violations are delineated, or before it is even certain that injuries will occur at all.” Johnson v. General Electric , 840 F. 2d 132, 136 (1 st Cir. 1988).


15

The parties were referred to this case during the conference call of August 2007.


16

See DOE Advisory SPED 2004-4 addressing DSS’ and LEAs’ responsibilities regarding residential placements for students, and limitations on the BSEA’s jurisdiction.


17

See Administrative Advisory SPED 2004-4 .


18

There are certain instances in which an agreement between the parties may be addressed by the BSEA. Those instances involve matters in which the parties have incorporated the terms of the agreement into a student’s IEP.


19

In a previous ruling issued by Hearing Officer Byrne in this matter, addressing Brockton’s Motion to Dismiss, Hearing Officer Byrne denied the motion on the basis that “fundamentally the Parents are challenging Brockton’s decision that it was responsible for only the day component of Student’s residential placement at Walker Home and School. This is a cognizable claim under the BSEA’s broad grant of jurisdiction.” Hearing Officer Byrne stated that Parents could claim that Student required residential placement for educational reasons. Believing that Parents were interested in pursuing this claim, the matter remained opened. Parents’ position, as stated in their Motion for Summary Judgment makes it clear that this is not their intent.


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