Student v Needham and Newton Public Schools – BSEA #01-1094



<br /> Student v Needham and Newton Public Schools – BSEA #01-1094<br />

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v Needham and Newton Public Schools

BSEA # 01-1094

RULINGS REGARDING MOTIONS

Procedural History.

This matter was originally initiated by Student’s father (hereafter, Father) on August 23, 2000 when he filed a request for an expedited hearing, alleging that Student had been suspended from the League School. The hearing request was filed against Needham Public Schools. On September 1, 2000, Father filed a Motion requesting that Newton Public Schools be joined for the reason that Father had recently moved from Needham to Newton.

On September 6, 2000, a pre-hearing was held in this matter. At that time, by agreement of the parties and by agreement of the Newton Public Schools (hereafter, Newton), Father’s Motion to join Newton was allowed. During the pre-hearing, it was further agreed by the parties that Newton would develop an interim IEP by September 20, 2000, and a Hearing was scheduled for September 25, 2000 in the event that the parties could not agree on the interim IEP. On September 22, 2000, Newton and Father agreed to the interim IEP and the September 25, 2000 Hearing was cancelled. Since September 22, 2000, Newton and Father have been working towards the development of Student’s long term IEP and placement.

On September 26, 2000, Student’s mother (hereafter, Mother) filed a Motion to Intervene, seeking to “be granted full and complete ‘Party Status’ in the above referenced matter.” Simultaneously, Mother filed a Motion to Join the Massachusetts Department of Mental Health and Gina Yarbrough, Esquire. A Hearing was held on these three Motions on October 18, 2000; and the record was held open until November 1, 2000 for submission of written arguments.1 Each of these three Motions will be addressed below in this Ruling.

MOTION TO INTERVENE

Facts.

The facts relevant to Mother’s Motion to Intervene are not in dispute. By order of the Middlesex Division of the Probate and Family Court (Docket # 94D1422), Father has sole legal custody of Student. The Court’s Findings and Temporary Order, dated July 29, 1999, found that Mother appeared to oppose a residential placement for Student, that Father was prepared to follow the recommendations of the Guardian Ad Litem, treatment team and Student’s attorney regarding educational placement (including possibly a residential placement) and consequently that it is in Student’s best interests that legal and physical custody be changed from Mother to Father.

Although Mother does not have legal or physical custody of her son, she has been actively involved in his treatment and education. The Guardian Ad Litem recommended, and the Court apparently agreed, that Mother should “continue to be allowed to attend all treatment team meetings, to speak on a regular basis to [Student’s] providers, and to have access to all information regarding [Student’s] treatment. See the Temporary Order of the Court, dated June 27, 2000. At the October 18, 2000 Hearing on this Motion, Father (through his advocate) and Newton (through its attorney) agreed that it is important that Mother continue to be involved in the discussions and planning regarding her son’s education.

Law.

The Bureau of Special Education Appeals (hereafter, BSEA) Hearing Rule 1E provides, in part, that the Hearing Officer may allow any person “who may be substantially and specifically affected by the proceeding” to intervene or participate in part or all of the proceeding. The BSEA also is governed by the Formal Rules contained in the Standard Adjudicatory Rules of Practice and Procedure of the Executive Office for Administration and Finance (801 CMR 1.00). Subsections 9(d) and (e) of these Rules allow the Hearing Officer to grant full party status to an intervenor. Alternatively, the Rules allow participation that is limited to arguing orally at the close of the hearing and filing an amicus brief. This more limited participation does not include having the rights of a person aggrieved by the result of the proceeding.

The regulations under the federal statute (IDEA) define “parent” to include a “natural or adoptive parent of a child” without reference to custodial status of the parent. 34 CFR 300.20. These regulations further allow a “parent” to initiate due process procedures regarding the child’s identification, evaluation or educational placement. 34 CFR 300.507.

In contrast, the state Department of Education regulations define “parent” to mean the father or mother with legal custody of the child for purposes of educational decision-making when the father and mother are not living together. 603 CMR 28.02(15).

Findings and Conclusions.

The Probate and Family Court has considered the question of which parent should be the person responsible for parental decision-making regarding Student’s educational services, and through its orders, has determined that Father (rather than Mother) should have this responsibility. See Court Orders, dated July 29, 1999 and June 27, 2000. Were I to allow Mother to intervene and have full party status, Mother might appeal a decision of this Hearing Officer even though the decision was consistent with Father’s requested relief. Alternatively, Mother might choose to litigate this matter further before the BSEA even after Newton and Father resolved between them the issue of what educational services are to be provided Student. Either result would be in clear contradiction of the intent of the Probate and Family Court Orders, which is that Father, rather than Mother, be the parental decision-maker regarding Student’s special education.

The state Department of Education regulations support the proposition that a non-custodial parent should not be given full party status. When parents are living apart, it is only the custodial parent (with educational decision-making) who is defined as a “parent” for purposes of the regulations and who therefore has the various rights provided to parents under the state DOE regulations regarding special education and related services for their son or daughter. 603 CMR 28.02(15).

The federal special education regulations could be read more broadly since the definition of parent includes no limitation to custodial parent, in contrast to the state regulations. 34 CFR 300.20. But, every relevant decision that I am aware of has concluded that a non-custodial parent without educational decision-making authority does not have standing to initiate a due process hearing to contest the special education or related services for his or her child. E.g., North Allegheny Sch. Dist ., 26 IDELR 774 (SEA PA 1997); In Re T.C ., 25 IDELR 1245 (SEA VT 1997); Andalusia City Bd. of Educ ., 22 IDELR 666 (SEA AL 1995). Cf. Timothy Doe and Peter Doe v. Gregory Anrig , CA No. 81-1731-T, 1986-87 EHLR DEC. 558:278 (D. Mass. January 15, 1987), vacated by the First Circuit Court of Appeals on April 3, 1987 by agreement of the parties (if non-custodial parent is properly notified but refuses to participate or is unable to agree with custodial parent, school district might be justified in relying on custodial parent’s acceptance of the IEP). I therefore conclude that the federal special education regulations are not inconsistent with the principle that a non-custodial parent without educational decision-making authority does not have the right to full party status in a special education due process proceeding before the BSEA.

For these reasons, I will deny Mother’s Motion to intervene so as to have full party status.

During the October 18, 2000 Hearing on Mother’s Motion, the Mother (through her advocate) alternatively requested that she be allowed to participate on a more limited basis, through oral argument at the close of the Hearing and by amicus brief, as described above. 801 CMR 101(9)(e). Both Newton and Father agreed that Mother should be allowed to so participate. There was also agreement that it may be helpful for Mother to be called as a witness if this matter proceeds to a Hearing on the merits. For theses reasons, I will allow Mother’s alternative request to participate through oral argument at the close of the Hearing and by amicus brief. Mother’s participation shall not include any other rights of a party although Mother may be called as a witness by any of the other parties or by the Hearing Officer, and the use of the term “party” in this Ruling shall not include Mother.

Order.

Mother’s Motion to Intervene and participate with full party status is hereby DENIED. Mother’s alternative request to participate through oral argument at the close of the Hearing, through an amicus brief and through (possibly) being called as a witness is hereby ALLOWED.

MOTION TO JOIN THE MASS. DEPARTMENT OF MENTAL HEALTH

Facts.

The facts relevant to Mother’s Motion to Join the Massachusetts Department of Mental Health (hereafter DMH) are not in dispute. Student is currently receiving mental health services through North Crossing, a private agency. Student’s North Crossing services include a mental health residential program and mental health day services, which are funded, at least in part, by DMH.

The interim IEP proposed by Newton and accepted in full by Father calls for three hours of tutoring each day (recently increased to four hours per day), as well as continuation of the following services which are being provided by North Crossing: group therapy (one hour per week) and life skills training (two hours per week).

Newton continues to work with Father, as well as Mother, to provide further evaluations of Student and to develop a more long term IEP and placement. Newton and Father are considering possible educational residential placements for Student. Mother is generally opposed to a educational residential placement, preferring that Student be placed in an educational day program and continue to attend the North Crossing mental health residential program funded through DMH.

Law.

BSEA Rule 1F provides that a Hearing Officer may allow for joinder either because complete relief cannot be granted among those who are already parties or because the entity to be joined has an interest in the case and the case cannot be disposed of in its absence. It seems apparent at the outset that the only reason that this case could not be disposed of in the absence of DMH would be because complete relief could not be granted without its being a party. Therefore, the issue becomes whether complete relief can be granted if DMH is not a party.

The recently-promulgated emergency regulations of the Massachusetts Department of Education (effective September 26, 2000) have provided new clarification regarding the jurisdiction of BSEA Hearing Officers over state agencies. 603 CMR 28.08(3). This regulatory language now explicitly grants BSEA Hearing Officers jurisdiction to entertain and resolve special education disagreements involving state agencies, in accordance with certain federal and state rules, regulations and policies. Section 28.08(3) provides , in part:

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 hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised in accordance with the rules, regulations and policies of the respective agencies and consistent with 34 CFR 300.142(a).2

Although this regulatory language does not explain whether its intent is to give Hearing Officers the authority to order a state agency to provide services in an appropriate case, this question will soon be resolved in the affirmative through statutory language to take effect January 1, 2001. The statutory language explicitly allows BSEA Hearing Officers to determine that a state human service agency (including DMH) shall provide “services” in addition to the “program and related services to be provided by the school committee.” Section 162 of the Massachusetts state budget for the fiscal year beginning July 1, 2000 (hereafter, Section 162) amends MGL c. 71B, s. 3, by adding the following language:

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 program and related services to be provided by the school committee.3

Findings and Conclusions.

Reading together the above-described BSEA Rule regarding joinder and the regulatory language applicable to BSEA jurisdiction over state agencies, it seems apparent that the initial level of inquiry is whether (i) there is currently a dispute (between a school district, private school or parent/student and a state agency) which impacts on the special education or related services to be provided to the student, and (ii) the impact of the dispute on special education and related services is such that the BSEA case cannot be resolved fully by the Hearing Officer unless the state agency is a party to the BSEA proceeding.

In the present matter, there is an anticipated dispute involving DMH services. The dispute relates to the question of whether Student should continue to receive his residential services from DMH or from Newton. But, this dispute is possibly between Mother and Father or possibly between Newton and Mother, but not (at least yet) between DMH and any of the parties in this matter. This is because Newton is not currently objecting to the possibility of providing a educational residential placement, nor is there any indication that DMH would refuse to continue funding Student’s mental health residential education program at North Crossing in the event that Newton provides only an educational day program.

Father has also expressed potential concerns regarding Student’s mental health day services. But, no showing has been made that these concerns may lead to a dispute which will in turn impact on Student’s special education or related services.

Therefore, because at this time, there is no dispute involving DMH that impacts on the special education or related services to be provided Student, it is not appropriate to join DMH as a party. Should this situation change, a Motion to join DMH can be re-filed by a party and will be re-considered.4

Order.

Mother’s Motion to Join DMH is hereby DENIED.

MOTION TO JOIN GINA YARBROUGH

Facts.

Gina Yarbrough is an attorney employed by the Mental Health Legal Advisors Committee. On September 6, 2000 during the pre-hearing in this matter, Attorney Yarbrough represented Student and participated in the pre-hearing. Then, by letter of September 26, 2000, Attorney Yarbrough advised this Hearing Officer that she no longer represents Student; and it is agreed by the parties and Mother that she does not currently represent Student.

Law.

BSEA Rule 1F provides that a Hearing Officer may allow for joinder either because complete relief cannot be granted among those who are already parties or because the entity to be joined has an interest in the case and the case cannot be disposed of in their absence.

Findings and Conclusions.

Mother (through her advocate) argues that Attorney Yarbrough has special experience and expertise that would be important in the resolution of this matter. Notwithstanding her experience and expertise, however, it is apparent that complete relief can be granted without participation of Attorney Yarbrough as a party and that the case can be disposed of in her absence. Mother has provided no basis for concluding otherwise. For this reason, Mother’s joinder Motion will be denied.

Order.

Mother’s Motion to Join Gina Yarbrough is hereby DENIED.

By the Hearing Officer,

_________________

William Crane

Dated: November 9, 2000


1

Father (through his advocate), Mother (through her advocate), Newton (through its attorney) and the Department of Mental Health (through its attorney) participated in the Hearing. Needham Public Schools chose not to participate in the Hearing regarding Mother’s Motions, in light of its financial but not programmatic responsibility for Student’s education.


2

34 CFR 300.142(a) describes the federal Department of Education requirement that Massachusetts have an interagency agreement or other mechanism for interagency coordination between the state Department of Education and other state agencies in order to ensure that certain services necessary to ensure FAPE are provided. It may be that new state statutory language (Section 162 of the 2000-2001 budget, discussed infra ) provides, at least in part, the state dispute resolution mechanism mandated under these federal regulations.


3

An important part of this new statute (Section 162), as well as the above-discussed new regulatory language, is that the authority of the BSEA must be exercised “in accordance with” the rules, regulations and policies of the particular state agency. With respect to the Department of Mental Health, it is apparent (and DMH agrees) that one set of relevant regulations is the DMH “Service Planning” regulations whose purpose is to provide a “framework by which DMH continuing care services are provided in the community . . . .” 104 CMR 29.01(3). These regulations contain an appeals process that includes a fair hearing and a DMH Hearing Officer’s written decision which becomes “the final decision of [DMH] on all issues” unless a re-hearing is ordered. 104 CMR 29.15(5). In other words, DMH services and service planning are subject to a regulatory appeals process through which it may be determined that certain mental health services are to be provided by DMH (or through DMH funding) to a particular special needs student. None of the parties (nor Mother or DMH) addressed directly the question of whether these DMH regulations are inconsistent with a BSEA Hearing Officer’s authority, pursuant to Section 162, to determine DMH’s obligations to a DMH client when necessary to resolve fully a special education dispute before the BSEA.


4

DMH has also argued that Mother does not have standing to file a Motion to Join DMH. I decline to resolve this Motion on procedural grounds. At the Motions Hearing, both Father and Newton indicated support for joinder of DMH, and Father has further urged joinder of DMH through his written arguments in support of Mother’s Motion. I conclude that that there is a likelihood that Father or Newton would file their own motion to join DMH in the event I were to deny Mother’s Motion on the basis of her standing. It is in the interests of all concerned that the question of joinder of DMH be resolved on the merits without further delay.


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