TYNGSBOROUGH PUBLIC SCHOOLS – BSEA #98-2510

THE COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA #98-2510

IN RE: TYNGSBOROUGH PUBLIC SCHOOLS

DECISION

This matter comes before the Bureau of Special Education Appeals at the request of the Tyngsborough Public Schools (hereinafter “Tyngsborough”). Tyngsborough seeks to overturn the Department of Education’s November 21, 1996 determination that Tyngsborough is financially responsible for the Student’s 1997-1998 school year placement at a private, day, special education facility. Tyngsborough originally filed an appeal of the Department of Education’s (hereinafter “the Department”) determination on May 2, 1997. (See Tyngsborough. Ex. 3.) The BSEA action was postponed, and ultimately dismissed, when Tyngsborough sought review of the Department’s action in Superior Court. On May 18, 1998, the Superior Court dismissed Tyngsborough’s suit for failure to exhaust administrative remedies. Tyngsborough refiled its hearing request at the BSEA on June 26, 1998. At a prehearing conference held on October 7, 1998, the Department, the Lawrence Public Schools (hereinafter “Lawrence”) and the Amesbury Public Schools (hereinafter “Amesbury”) were joined in this action by assent. As the issue before the Bureau is one of regulatory construction and application and not one of fact the parties agreed to submit to a Decision on briefs. All parties submitted written briefs and supporting documentation by January 30, 1999, and the record closed on that date.

ISSUE

Whether the determination of the Massachusetts Department of Education that Tyngsborough is financially responsible for the Student’s special education placement for fiscal 1997 should be overturned?

SUMMARY OF THE FACTS

The pertinent facts are not in dispute and may be briefly summarized:

1. The Student is a school age child with special educational needs as defined by M.G.L. c.71B. Since 1991 the Student has attended St. Ann’s Home Day Program, a private, special education school approved by the Department of Education, pursuant to a series of 502.5 individualized education plans.

2. The Student has been in the custody of the Department of Social Services continuously since May 24, 1994. During this time the student has been placed in a succession of foster homes and emergency shelters in northeastern Massachusetts. (See Department Ex. 1; Tyngsborough Ex. 1.) The placements relevant to this decision were:
a.) foster care in Lawrence – 5/24/94 – 3/31/95

b.) emergency shelter in Methuen – 4/1/95 – 5/16/95

c.) foster care in Lawrence – 5/17/95 – 5/18/95

d.) emergency shelter in Methuen – 5/19/95 -7/24/95

e.) foster care in Lawrence – 7/25/95

f.) foster care in Haverhill – 7/26/95

g.) foster care in Lawrence – 7/27/95 – 7/31/95

h.) foster care in Dracut – 7/31/95 – 8/ / 95

I.) foster care with same family in Chelmsford – 8/ /95 – 10/ /95

j.) foster care with same family in Tyngsborough – 10/ /95 – 6/15/96

k.) emergency respite care in Amesbury – 6/15/96 – 8/2/96

l.) foster care in Lawrence – 8/2/96 – present

3. Because of the Student’s multiple moves Lawrence and Tyngsborough sought the assistance of the Department of Education to determine which school district should fund the Student’s special education placement at St. Ann’s Home for the 1996-1997 school year. On November 21, 1996, the Department advised both school districts that Tyngsborough was financially responsible for the Student’s 502.4 placement for fiscal 1997. The Department noted that it was clarifying the respective responsibilities of the school districts pursuant to 603. CMR § 202.1(b) and 603 CMR § 332.2. It found Tyngsborough to be fiscally responsible for the Student based upon his residence in Tyngsborough from 10/95 to June 15, 1996. The Department wrote that although the Student was physically in Amesbury on July 1, 1996, Amesbury would not be fiscally responsible for his 1996-1997 school program because the Student’s placement in Amesbury was intended to be temporary and the Student did not enroll in the Amesbury Public Schools. (Department Ex. 3; Tyngsborough Ex. 2)

STATUTORY AND REGULATORY FRAMEWORK

Financial responsibility for special education costs is assessed to the community in which the special needs student resides at the relevant time period. M.G.L. Chapter 71B, Section 3 provides in pertinent part:

In accordance with the regulations, guidelines and directives of the department issued jointly with the departments of mental health, mental retardation, and public health and with assistance of the department, the school committee of every city, town or school district shall identify the school age children residing therein who have special needs, diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for the provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require.

As courts have recognized, however, the term “residing therein” as used M.G.L. c. 71, §3, “is not obviously self-defining.” George H. & Irene J. Walker Home for Children v. Town of Franklin , 416 Mass. 291, 296(1993), quoting Board of Education v. School Committee of Amesbury , 16 Mass. App. Ct. 508, 512, 452 N.E.2d 302 (1983). M.G.L. c. 71B authorizes the Department of Education to promulgate regulations regarding its implementation. In order to clarify which municipality is responsible for funding placements of students whose “residence” may be unclear, the Department has developed regulations specifying which school committee is responsible for students in various factual circumstances. 603 CMR § 28.202.1. Section 28.202.1(b) applies to the facts in this matter:
(b) Children who have been placed or are funded by the Department of Social Services in foster homes are the responsibility of the school committee with jurisdiction over the city, town, or school district where the foster home is located.

This regulation treats students placed in foster families identically to those students living with their original families for the purpose of special education. The residence of the foster family is deemed to be the residence of the student regardless of the actual legal and custodial arrangements the Department of Social Services may have. Similarly the foster child may establish a new residence through a move with an existing foster family or by placement into a new foster family. Where the child’s place of residence changes from one municipality to another, section 28.332.3 of the Department’s regulations generally provides for a corresponding shift in fiscal responsibility from the former to the new community of residence “as of the actual date of the child or the child’s family’s new residence except as provided herein.” The exception to this general rule is contained in M.G.L. c.71B, §5 and is generally referred to as the Move-In Law. In July, 1996, the Move-In Law provided in pertinent part:1

If a child with special needs for whom a school committee provides or arranges for the provision of special education in a day or residential placement pursuant to the provisions of section 3, or his parent or guardian, move to a different school district after July 1, of any fiscal year, said school committee of the former community of residence shall pay the approved budgeted costs of such day or residential placement of such child for the balance of the school year.

The Department’s regulation implementing the Move-In Law provides:

The school committee of the new community of residence shall assume financial responsibility for the child’s special education program as of the actual date of the child’s family’s new residence except as provided herein. If the school committee of the child’s former community of residence has provided or arranged for the provision of special education to the child in a residential (502.6) or day (502.5) program and the child’s family moves to a different school district after July 1 of the fiscal year, the school committee of the former community of residence shall pay the approved budgeted costs of such residential or day placement for the balance of such fiscal year, in accordance with Section 5 of M.G.L. c.71B. 603 CMR § 28.332.3

The “move-in” law and regulation do not specifically address the circumstances of students placed in foster families by the Department of Social Services. Consistent with the Department’s equivalent treatment of foster families as expressed in 603 CMR § 28.202.1(b), the move-in provisions should be construed to apply evenly to foster and original families. The “move-in” law applies only to special education students attending private day or residential schools pursuant to 502.5 and 502.6 individualized education plans.

DISCUSSION

Here Tyngsborough asserts that the Student had moved out of Tyngsborough on June 15, 1996, when he left his foster home, and was not present in Tyngsborough on July 1, 1996, when his residence should have been calculated for special education fiscal responsibility purposes. The Department, on the other hand, takes the position that removal to a respite facility or emergency placement in a shelter is not intended to be permanent and thus cannot be the basis for establishing the residency of a student. It contends that this Student did not establish a residence other than Tyngsborough until his placement with a new, long term foster family in Lawrence on August 2, 1996. Thus on July 1, 1996, his last known residence was Tyngsborough. The Department also points out the Student’s emergency placement in Amesbury took place during the summer vacation, and that the Student never enrolled in Amesbury Public Schools or even notified Amesbury of his brief sojourn in that town. Therefore, according to the Department, its interpretation of residence and the move-in law is consistent with both the legislative intent that a student’s community of residence be responsible for funding an appropriate special education program and judicial guidance that residence is not determined merely by physical presence in a place on some select date. See: Board of Education v. School Committee of Amesbury , 16 Mass App. Ct. 508, 452 N.E .2d 302 (1983). After careful consideration of the arguments of all the parties, and review of the relevant statutory, regulatory, and judicial authorities, it is my conclusion that the Department of Education was correct when it determined that Tyngsborough was responsible for funding this Student’s 1996-1997 502.5 placement.

The Student resided with his foster family in Tyngsborough for the bulk of the 1995-1996 school year during which he attended St. Anne’s Home Day School. For reasons not disclosed in the record he entered respite care through the Department of Social Services on June 15, 1996. He did not attend school while in respite care. The respite facility was located in Amesbury. The Student’s foster family remained in Tyngsborough. The Student was physically present in Amesbury, but unknown to the schools, on July 1, 1996. The Student moved in with a new foster family in Lawrence in August, 1996. When asked by Tyngsborough and Lawrence which school district should pay for the Student’s continued placement at St. Ann’s Home, the Department correctly applied 603 CMR § 202.1(b) finding that the Student’s residence on July 1st, was that of his Tyngsborough foster family. A respite placement is temporary by design. When the Student entered respite care, he entered a program intended to be short term. The Student could not establish a residence in a place in which he did not intend to remain. Hershkoff v. Registrars of Voters of Worcester , 366 Mass. 570 (1974) The Student’s residence did not change until he was placed in a new foster family with the intention and expectation that he would remain with that foster family indefinitely. Upon that placement the Student’s residence changed from Tyngsborough to Lawrence. That placement occurred on August 2, 1996. Therefore the Department correctly interpreted the move-in law, M.G.L. c. 71B § 5, and applied its own implementing regulation 603 CMR § 332.2, to find that on July 1, 1996, the Student remained a resident of Tyngsborough.

Tyngsborough argues that the Department’s interpretation of 603 CMR 202.1 is arbitrary as there is no language in that regulation that explicitly exempts designated “short-term” placement such as emergency shelters, respite facilities or summer camps, from consideration as a student’s residence. To the contrary the Department’s position is entirely consistent with 603 CMR § 28.202.1(d)2 which places responsibility for students in crises or respite facilities with the town in which the student lives. Once again to determine the residence of students living in short-term placements one must look to traditional indicia of residence. Closely linked to the legal concept of domicile, residence for school assignment purposes means actual presence in a town with an intention to remain. See Hershkoff , supra ; see also: Brockton School Committee v. Antonucci . Sup. Ct. C.A. No. 97-0899B (1998); Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 621 N.E. 2d 376 (1993). Here the student had established a residence with his foster family in Tyngsborough. He did not abandon that residence through a temporary move to a respite facility any more than a student not in foster care would be deemed to have separated from his family upon placement in an interim shelter for the summer school vacation. I find the Department’s application of the traditional understanding of residence to determine that the Student here remained a resident of Tyngsborough until he acquired a new family in a new town was not arbitrary or capricious, but rather based on sound legal principles.

It is interesting to note that Tyngsborough benefitted from the uniform application of these same principles when financial responsibility for the school year 1995-1996, was determined. Although the Student lived in Tyngsborough for most of that school year, Lawrence paid for the Student’s 502.5 placement at St. Ann’s Home. On July 1, 1995, the date on which the Student’s residence for 603 CMR § 28.202.1 and 28.332.3 purposes would have been determined the Student was in an emergency shelter in Methuen. The Student’s immediately preceding foster family placement (of two days duration) was located in Lawrence. Therefore, Lawrence undertook responsibility for the Student’s placement for fiscal 1996. (See ¶ 2.) This record of consistent interpretation of the concept of residence does not support a finding of arbitrariness.

Tyngsborough also argues that the Department inappropriately “assigned” it responsibility for the Student under 603 CMR § 28.202.1(e) which permits the Department to reasonably select a responsible school district for a student whose parent or guardian cannot be located when the student lives in a residential school or non-DSS funded group facility.3 A close reading of the Department’s determination letter, however, shows that it did not “assign” Tyngsborough to be the fiscally responsible school district for this Student under 603 CMR § 28.202.1(e). It did “clarify” the responsibilities of the querying school districts based on the Department’s determination of the student’s residence pursuant to 603 CMR § 28.202.1(b). See Department Ex. 3; Tyngsborough Ex. 2. I find that the Department correctly considered and implemented the regulatory section appropriate to the facts in this matter, Section 28.202.2(b), when it advised Tyngsborough of its financial responsibility for this Student for fiscal 1997.

Next Tyngsborough contends that placing the financial responsibility for this Student on it is unfair when most of the Student’s familial and residential ties are to the community of Lawrence: the Student’s mother has always lived in Lawrence; most of the Student’s foster placements have been in Lawrence; Lawrence has funded the Student’s 502.5 placement up until fiscal 1997. These factors, Tyngsborough argues, would lead a reasonable person to conclude that the Student’s domicile is Lawrence. According to Tyngsborough the regulation which permits the Department to ignore the Student’s substantial and longstanding ties to one town by presuming the establishment of residence wherever a foster placement is located does not have a solid legal foundation. Tyngsborough argues that if the Department can exclude “short term” placements such as respite care from consideration as a residence, then it should by extension also exclude foster placements as establishing a student’s residence. To distinguish between them, Tyngsborough asserts, is arbitrary.

While Tyngsborough’s arguments have some merit, the regulation at issue has a rational basis. First it greatly simplifies the process of determining residence for most children in foster care, saving the resources of the school and the Department of Social Services for more productive purposes. It also provides some measure of privacy for the student. More importantly it promotes one of the special education laws’ main goals: the normalization and community integration of students with special needs. There is nothing in 603 CMR 28.202.1(b) itself that it is inimical to the statutory directive that school assignment be based on the student’s actual residence. Therefore I do not find Tyngsborough’s assertion that the Department’s view that it is financially responsible for fiscal 1997 to be so unreasonable as to warrant being set aside. Neither do I find the regulation itself to be unreasonable, arbitrary, or contrary to the intent of the Legislature as expressed in M.G.L. c.71B.

Tyngsborough’s final argument in support of setting aside the Department’s determination of residence is that it is inconsistent with the plain language of M.G.L. c. 71B § 5 which provides that the school district in which a child resides as of July 1st of a fiscal year has financial responsibility for that child for the balance of the fiscal year. See p.4. I do not find any such inconsistency. As explained infra the Department has fairly interpreted and applied the term “resides” in this matter. Tyngsborough’s argument seems to be based squarely on fiscal frustration. Nonetheless, the Legislature has clearly, and repeatedly, chosen to fund public education based on student residence. So long as public funding of education is allocated in this manner there are bound to be inequities, unfairness to particular towns or student groups, and disputes among school districts as to responsibility for certain high cost or high risk students. Nevertheless so long as each individual student eligible for special education actually receives a free, appropriate public education the Legislature’s chosen funding scheme comports with federal and state special education mandates. Revision of a state public education funding structure based on residence requires Legislative reform and is beyond the scope of this administrative hearing.

To resolve the issue presented at this hearing it is enough to say that the Legislature chose to fund special education programs based on student residence and delegated to the Department of Education the task of defining, interpreting, determining and assigning residence. M.G.L. c.71B. Walker , supra , 416 Mass. at 296 n. 8. The Department developed and promulgated regulations concerning residence. 603 CMR § 28.202. There is nothing in that regulation itself, or in its interpretation or application in this matter, that is inconsistent with the legislative grant of responsibility or the legal precedents on interpretation of the term “residence.” Therefore there is no basis on which to overturn the Department’s November 11, 1996, determination of financial responsibility in this matter.

ORDER

The November 11, 1996, determination of residence of this student made by the Department of Education is upheld. Tyngsborough is financially responsible for the costs of the Student’s 502.5 special education program at St. Ann’s Home for fiscal 1997.

By the Hearing Officer,

___________________

Lindsay Byrne

Date: February 12, 1999


1

This law has since been amended, effective July 1, 1997. The amendment changed the date on which a student’s residence is determined from July 1st to April 1st.


2

See Text at note 3


3

The pertinent sections of the regulation provide:

(c) Children who live and receive special education services at a private residential school, hospital, pediatric nursing home, Department of Mental Health school, or Department of Public Health hospital school, Department of Youth Services facility, Department of Corrections or County House of Corrections facility are the responsibility of the school committee(s) which has (have) jurisdiction over the city, town or school district where the child’s father, mother or guardian lives.
(d) Children who are in a living situation other than that described in 603 CMR 28.202.1 (a), (b) or (c), including but not limited to group homes funded by state agencies, foster homes funded by state agencies other than the Department of Social Services, living situation for people 18 years of age and over which are funded or supervised by a human service agency, crisis or respite facilities, and relative’s homes which are not funded by the Department of Social Services, are the responsibility of the school committee which has jurisdiction over the city, town or school district where such children live. Where such child has a father, mother or guardian living in the Commonwealth and the child, if over 18 has not established a separate residence as defined in 603 CMR 28.202.1 (a), the school committee responsible for such child may bill and shall receive payment for the costs of educating the child from the school committee(s) with jurisdiction over the city, town, or school district where the father, mother or guardian lives. That school committee is required to pay the costs of educating such child upon receipt and verification of such bill. If the child requires a private special needs day or residential school or educational collaborative program, the school committee(s) of the city, town, or district where the mother, father or guardian resides shall pay the cots directly to the private school or educational collaborative providing educational services to the child shall invite the Administrator of Special Education of the school committee(s) of the city, town or district where the mother, father or guardian resides to participate the TEAM Evaluation and placement of the child, provided that nothing in 603 CMR 202.1 (d) shall limit the right of the child to timely evaluation and placement in accordance with 603 CMR 28.00. The school committee(s) of the city, town or district where the father, mother or guardian resides shall be liable in contract to the school committee responsible for providing education to such child for the costs of the educational services.

(e) The Department of Education shall assign a city, town or school district to be responsible for providing special education to children in a living situation described in 603 CMR 28.202 1© or (d) who have neither a father, mother or guardian whose residence can be determined in the Commonwealth, or who have been voluntarily surrendered for adoption by his or her father mother or guardian, or who have been freed for adoption by the Probate Court. Nothing in 603 CMR 28.00 shall require a school committee to provide special education to a student whose parents or guardian live outside the Commonwealth and have placed the student in an education program in the Commonwealth or who maintain contact with the student who remains in the Commonwealth.

(1) The Department of Education shall use the following criteria to assign a city, town, or school district responsibility for the provision of special education to a child under this section:

a. The last known Massachusetts residence of the child’s father, mother, or guardian prior to moving from the Commonwealth, dying, surrendering the child for adoption nor having parental rights terminated.

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

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