Westborough P.S. BSEA #10-7493
COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Hal[1] BSEA #10-7493
RULING ON PARENT’S MOTION TO JOIN THE MASSACHUSETTS
DEPARTMENT OF DEVELPMENTAL SERVICES
This ruling is rendered pursuant to M.G. L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and regulations promulgated under these statutes.
A motion session was held on March 2, 2011 in which the parties/potential party offered oral argument to supplement written documentation/argument previously submitted.
STATEMENT OF THE CASE
Hal is 13 years old and has significant delays in all areas of functioning including cognition, language/communication, academics, motor skills, behaviors, social skills, and activities of daily living (ADL) skills. Westborough Public Schools (WPS), Hal’s school district, proposes that Hal remain at the Mercy Center, which is Hal’s current private day school placement funded by WPS. Parent originally filed a hearing request before the BSEA seeking a different private day school placement. In November 2010, Parent amended the hearing request, now seeking a residential educational placement. In February 2011, Parent filed a Motion to Join the Massachusetts Department of Developmental Services (DDS), formerly the Massachusetts Department of Mental Retardation (DMR) to this BSEA appeal. Hal currently receives DDS services in the home.
STATEMENT OF POSITIONS
1) Parent’s position is that Hal requires a residential educational placement in order to receive a free and appropriate public education (FAPE) and that WPS is responsible for that residential educational placement. Parent also contends that Hal can no longer be managed in the home and that DDS should be responsible for the residential portion of Hal’s placement if WPS is deemed not responsible.
2) WPS’ position is that Hal is making effective progress in his current day school placement at Mercy Center and does not require a residential educational placement in order to receive FAPE. If Hal requires an alternative housing situation, WPS contends that such residential services would be the responsibility of a human services agency such as DDS. WPS does not oppose the joinder of DDS.
3) DDS’ position is that Hal has been a DMR/DDS client since 2008. DDS states that Hal was found DMR/DDS eligible for family support services pursuant to 115 CMR 6.05, i.e., a person under age 18 with a diagnosed developmental disability. DDS contends that family support services include such things as respite care, a personal care attendant, case management and behavior supports, but not residential placements. Indeed, DDS points to 115 CMR 6.07(2) – Prioritization for Supports to Children and Families where it is provided that:
The Department seeks to provide certain supports to the families of children with developmental disabilities to enable the family to stay together to be contributing members of their communities. These supports are intended to assist, not to replace or substitute for, the child’s family. The responsibility to provide a home and parental care and guidance rests with the child’s parents or, in the event of their absence or incapacity, with the public agency responsible for ensuring the care and protection of children generally, i.e., the Department of Social Services or its successor.
DDS contends that Hal is not generally eligible for DDS services i.e., mentally retarded and over 18 years of age, pursuant to 115 CMR 6.03 where residential services are sometimes provided, subject to availability and funding.
RULING
Based upon the written submissions, oral arguments, and a review of the applicable law, I conclude that Parent’s Motion to Join DDS must be Denied. My analysis follows.
Pursuant to BSEA Hearing Rule 1(F) joinder is appropriate where:
Complete relief cannot be granted among those who are already parties, or the person being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in their absence.
Pursuant to M.G.L. c 71B s.3, as amended by chapter 159, section 162 of the Acts of 2000, as codified in 603 CMR 28.08(3):
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….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 consistent with 34 CFR 300.142(a). The hearing officer may determine, in accordance with the rules, regulations and polices 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.
The issue of joinder of the other state agencies has been addressed with increasing frequency by the BSEA, with joinder granted in some instances and denied in some instances based upon the specific facts and circumstances of the particular case. In considering a motion for joinder, a hearing officer must be guided by the provisions of 603 CMR 28.08(3), which states that the Hearing Officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided in addition to the IEP services provided by the school. In the instant case joinder of DDS would serve no productive purpose as DDS rules, regulations and policies are such that Hal is not generally eligible for DDS residential services (i.e., mentally retarded and over 18 years of age, pursuant to 115 CMR 6.03, where residential services are sometimes provided, subject to availability and funding).
Parent/WPS points to In re: Medford Public Schools, BSEA #01-3941 and 7 MSER 82 (2001) and In re: Southern Berkshire Regional School District BSEA #03-2013 and 9 MSER 62 (2003) in which a BSEA Hearing Officer ordered joinder of DMR. However, reliance on these cases is misplaced because the students in these matters were over 18 years old and, pursuant to 115 CMR 6.03, DMR had found them generally eligible for adult services (including the eligibility for DMR residential services). Such cases are clearly distinguishable from the instant case where Student is under the age of 18 and therefore has the more limited eligibility for family support services pursuant to 115 CMR 6.05. (See also 115 CMR 6.07(2) cited under DMR’s Position, above.) Indeed, in four other BSEA cases – In re: Haverhill Public Schools, BSEA# 02-0567 and 7 MSER 268 (2002); In re: Auburn Public Schools, BSEA #02-0983 and 8 MSER 143 (2002); In re: Brockton Public Schools, BSEA #02-3337 and 8 MSER 208 (2002) and In re: Lowell Public Schools BSEA #03-2637 and 9 MSER 52 (2003) - BSEA Hearing Officers denied joinder of DMR where students were under 18 years of age and were only eligible for the more limited family support services from DMR. The facts in Brockton, Haverhill, Auburn and Lowell are most clearly analogous with the situation in the instant case.
ORDER
Parent’s Motion to Join DDS is DENIED.
By the Hearing Officer
______________________________ Dated: April 7, 2011
Raymond Oliver
Footnotes
[1] Hal is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly availably documents.