Medford Public Schools – BSEA #01-3941

<br /> Medford Public Schools – BSEA #01-3941<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Medford Public Schools

BSEA # 01-3941

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on May 23 and 24, 2001 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student

Student’s Mother

Student’s Father

Jennifer Honig Attorney for Student

Miriam Ruttenberg Attorney for Student

Nicola Favorito Attorney for Medford Public Schools

Gail Bernstein Director of Pupil Services, Medford Public Schools

Diane Caldwell Education Team Leader, Medford Public Schools

Catherine Fromkin Clinician (social worker) at Victor School

Eleanor Doak Director of Victor School

Linda Simons Department of Mental Health Site Director

Peter Garand Social Worker at BayRidge Hospital

John Sebastianelli Staff Psychiatrist at BayRidge Hospital

The official record of the hearing consists of documents submitted by the Student and marked as exhibit 1 through 27, but not including exhibit 23 (hereafter, Exhibit P-1, etc.); documents submitted by the Medford Public Schools and marked as exhibits 1 through 30 (hereafter, Exhibit S-1, etc.); a single document submitted by the Massachusetts Department of Mental Retardation (hereafter, Exhibit DMR-1); and the recorded oral testimony and argument during the two Hearing days. Written closing arguments were due on May 29, 2001, and the record closed on that date. Medford and Student submitted written arguments

ISSUES PRESENTED

Issue 1 : Is the Medford Public Schools responsible for providing Student with an educational residential placement?

Issue 2 : If not, is the Massachusetts Department of Mental Retardation responsible for providing Student with residential services so that Student will be able to receive the special education and related services to which she is entitled pursuant to state and federal special education law?

PROCEDURAL HISTORY

On March 21, 2001, the Medford Public Schools (hereafter, Medford) filed with the Bureau of Special Education Appeals (hereafter, BSEA) a Request for Hearing, initiating the above-referenced case. Within the Request for Hearing, Medford asked for a BSEA order joining the Massachusetts Department of Mental Health (hereafter, DMH) and the Massachusetts Department of Mental Retardation (hereafter, DMR), and further asked for a BSEA order directing one or both of said agencies to provide residential services to Student.

Written arguments on the Motion to Join were received on April 27, 2001, and a Motion Hearing held on May 1, 2001. A Pre-Hearing Conference among the Hearing Officer, parties and proposed parties was also held on May 1, 2001, and at that time, the Hearing on the merits was scheduled.

By Ruling dated May 4, 2001, the Hearing Officer allowed Medford’s Motion to join DMR and denied without prejudice its Motion to Join DMH. See Ruling on Medford Public Schools’ Motion to Join the Massachusetts Department of Mental Health and the Massachusetts Department of Mental Retardation (attached at the end of this Decision as Appendix A and hereby incorporated by reference) (hereafter, Joinder Ruling ).

PARTICIPATION OF DMR IN THE HEARING ON THE MERITS

During the May 1, 2001 Pre-Hearing Conference, the DMR attorney advised the Hearing Officer that he had previously-scheduled court hearings every day until the beginning of July 2001. Because the urgency of this matter did not allow for accommodation of the DMR attorney’s schedule, the Hearing Officer set the earliest possible Hearing dates consistent with the schedules of the other parties and the Hearing Officer, and the Hearing Officer advised the DMR attorney that he expected DMR to identify an alternative attorney who would be available on the scheduled Hearing dates.

In a May 18, 2001 letter to the Hearing Officer, the DMR attorney reminded the Hearing Officer that he would be unavailable for the scheduled Hearing dates. In a Ruling dated May 21, 2001, the Hearing Officer took this letter as a request for postponement of the Hearing; the Hearing Officer reminded the DMR attorney of the urgency of this matter and that he expected DMR to find an alternative attorney; and the Hearing Officer denied the request for a postponement.

In a May 23, 2001 letter, the DMR attorney again informed the Hearing Officer of his unavailability for the scheduled Hearing, which was to begin the next day (May 24 th ), and, for the first time, stated that no other DMR attorney who is familiar with this case is also available on the days the Hearing is scheduled to begin. The DMR attorney’s letter provided no explanation of what steps had been taken by DMR to identify another attorney within its Legal Office (or retain the services of another attorney) since being notified on May 1 st of the Hearing dates, and gave no other indication that DMR had sought to give priority to scheduling this matter commensurate with its urgency. The DMR attorney’s letter left the Hearing Officer with two alternatives — either accommodate the DMR attorney’s schedule or proceed without DMR representation at the Hearing. By Ruling later that same day (May 23 rd ), the Hearing Officer denied DMR’s request for postponement.

BSEA issued subpoenas (at the request of Medford’s attorney) requiring the DMR Area Director Daniel Lincoln and the DMR Keeper of the Records in Mr. Lincoln’s Office to attend the Hearing. In the above-referenced May 23, 2001 letter, the DMR attorney stated that the subpoena of Mr. Lincoln “was not served in a proper fashion” (citing to BSEA Rule 7 and 801 CMR 1.01(j)1). The DMR attorney provided no further explanation as to the alleged defect in service. The DMR attorney then advised the Hearing Officer that Mr. Lincoln would not be attending the Hearing. Neither Mr. Lincoln nor the DMR Keeper of the Records attended the Hearing on the merits in this matter.

DMR was not represented at the Hearing on the merits on May 24 and 25, 2001, nor did any representative of DMR make him/herself available to testify at the Hearing. The only written evidence proposed by DMR was a part of the DMR regulations relevant to prioritization of its services, and this document was admitted into evidence as Exhibit DMR-1.

On May 25, 2001, the Hearing Officer notified the DMR attorney pursuant to a scheduling Order that the record would remain open until 5:00 PM on May 29, 2001 for purposes of receiving written arguments from the parties. No written argument was received from DMR.

POSITIONS OF THE PARTIES

Medford has taken the position that Student needs residential services, but these services are not educationally related and consequently not mandated under state and federal special education laws. Arguing that it therefore has no responsibility to provide Student with a residential educational placement, Medford has refused to offer these services to Student. Medford takes the position that it is DMR that bears responsibility for Student’s residential services.

Student agrees that she needs residential services. Although not taking a position as to whether it is Medford or DMR who should actually pay for or provide the residential services, Student takes the position that both Medford and DMR are legally responsible for doing so.

Although not disputing either Student’s eligibility for DMR residential services or Student’s need for residential services, DMR has taken the position (regarding Medford’s Motion to Join) that “DMR does not provide, nor is it obligated to provide residential services to individuals between the ages of 18 and 22 who are still in school and entitled to receive a public education in a regular educational environment.” DMR Memorandum in Opposition to Joinder of the DMR as Necessary Party , at page 2. In other words, DMR has argued that residential services are the responsibility of Medford (as the local school district) rather than DMR, and has refused to provide Student with these services.1

STATEMENT OF THE EVIDENCE

Student is nineteen years old (date of birth 10/14/81). She is an engaging, friendly and likeable person. She also has significant cognitive limitations, with a full scale IQ of 63 and a diagnosis of mild mental retardation. She has impaired judgment regarding her interactions with others (for example, being willing to go to someone’s house even though she does not know that person), frequently does not understand social cues and, as a result, is at significant risk of victimization. Student was adopted by her parents when she was nine years old. Testimony of Sebastianelli, Garand, Doak, Fromkin, Mother, Student; Exhibits S-26, P-15 (Neuropsychological Evaluation by Monica Gilboa, PhD, dated December 2000).

For the current school year (2000-2001), Student was placed by Medford as a day student at the Victor School in Concord, MA, pursuant to her last-accepted IEP (Exhibits S-19, P-2). Student first began attending the Victor School in January 1999. At the Victor School, Student made progress as reflected in her grades and written progress reports (Exhibits S-2 through S-6). When she began her senior year in September 2000, she was expected to graduate from the Victor School the following June. Testimony of Doak, Fromkin.

During part of the time period when she was attending the Victor School, Student was babysitting for a 14-month child in the child’s home after school. She also has worked during two summers (1999 and 2000) for six weeks each, caring for infants in a day care center as part of a community service work study program. By all reports, she did an excellent job at the day care center and was invited back for the second summer. Student hopes that after high school, she can become employed in a day care center or nursery. Testimony of Mother, Student, Fromkin, Doak.

An altercation with her brother and suicidal ideations precipitated Student’s admission to a psychiatric unit at the BayRidge Hospital (hereafter, BayRidge) on October 30, 2000. The psychiatric unit is a 31-bed locked, acute unit. The other patients on the unit are both male and female and are typically older than Student. BayRidge is a private hospital located in Lynn, MA. Testimony of Sebastianelli, Garand.

During her first few months at BayRidge, Student was depressed and impulsive, and occasionally assaultive, suicidal and self-destructive. Through a course of treatment, including medication, behavioral interventions and therapeutic counseling (learning to talk through her emotional issues), Student’s symptoms abated although she continued to carry a diagnosis of major depression (her depression waxes and wanes depending on the stressors in her environment). She continues to take medication for her depression. While at BayRidge, Student also continues to have difficulty, at times, coping with stress, and as a result occasionally becomes irritable and oppositional. Testimony of Sebastianelli, Garand.

Because of her significant improvements at BayRidge, Student has not needed to be in a psychiatric hospital since the end of January 2001, and by February 2001 her BayRidge treatment team considered Student ready to leave the hospital and live in a community residence with adult supervision. Testimony of Sebastianelli, Garand.

Student had lived at home with her parents and siblings until her hospitalization at BayRidge in October 2000. However, for several years while living at home, there were intense struggles between Student and her parents, as well as between Student and several of her siblings. Also, one of Student’s siblings, who is ten years old, suffers from auto-immune hepatitis and diabetes, and has an enlarged spleen. It is medically necessary that he avoid physical contact since a ruptured spleen could result in his bleeding to death. The altercation (together with suicidal ideations) that precipitated Student’s psychiatric hospitalization, involved Student apparently punching her brother in the abdomen. Testimony of Student, Mother, Fromkin, Sebastianelli, Garand.

Presently and for the foreseeable future, it would be unsafe as well as inappropriate for Student to return to live with her family. There remains a continuing concern that Student may become angry and strike out against her brother, which would place him in serious physical danger, including the possibility of death. Student, as well as her Parents, believe that she should not return home at this time. Testimony of Sebastianelli, Garand, Mother, Student.

Student’s age, immaturity and cognitive deficits preclude her from living safely in the community without adult supervision. Student tends to model the behavior of others, she often does not understand social cues, and she is vulnerable to putting herself at risk of victimization. Living in an inappropriate setting would put her at risk of verbal and physical abuse. As a result, Student has remained on the BayRidge psychiatric unit (except for an occasional medical appointment or Hearings regarding the present controversy), waiting for appropriate residential services. Testimony of Sebastianelli, Doak, Garand, Mother, Student, Fromkin.

Student’s continuing hospitalization has precluded (and continues to preclude) Student from attending the Victor School and receiving the special education services set forth in her IEP. Testimony of Garand, Caldwell.

It has been upsetting for Student to form relations with other patients at BayRidge and then see those patients leave the Hospital, while she remains behind with no clear end in sight for her hospitalization. (BayRidge is an acute psychiatric facility, and it is highly unusual for a patient to stay as long as Student has been hospitalized.) Her clinicians have noted her being extremely upset (pounding walls, screaming), and her regression and greater depression as a result. Also, on the psychiatric unit, Student has been assaulted by another patient who struck her on the head. Testimony of Sebastianelli, Garand, Student.

Because of the extended period of time spent on the psychiatric unit, Student has been developing institutionalized behaviors (for example, becoming overly reliant on staff to get her through difficult issues) which will make transitioning back to the community more difficult. There is a risk of further regression. She may also lose the ability to interact socially with more normal peers. Testimony of Garand, Fromkin; Exhibits P-7, S-24, S-25 (sworn declarations of Garand and Fromkin).

During the course of Student’s hospitalization, BayRidge staff arranged for Student to receive a neuropsychological evaluation from Monica Gilboa, PhD, on December 6 and 7, 2000 at Lexington Neuropsychology in Lexington, MA, in order to provide information that might assist BayRidge staff to place Student out of the Hospital. Dr. Gilboa administered the Wechsler Adult Intelligence Scale-III, on which Student obtained a full scale IQ score of 63, and she concluded that Student is properly diagnosed as having mild mental retardation. The Wide Range Achievement Test-3 was also administered, with scores indicating Student has skills in the 3 rd and 4 th grade level. Dr. Gilboa concluded that Student’s “overall academic skills suggest that she received good and appropriate educational remediation.” Dr. Gilboa further opined that Student’s psychiatric difficulties are relatively recent and may be caused by environmental factors rather than reflecting a “major mental illness per se.” Dr. Gilboa expressed concern about the possibility of Student’s living in an urban environment where she may be victimized. In addition, Dr. Gilboa concluded: “I am concerned about the ‘iatrogenic’ effect of her staying in a psychiatric environment for much longer: she is likely to imitate and adopt dysfunctional behaviors which she otherwise would probably not engage in.” Exhibits S-26, P-15.

On August 7, 2000, Student applied for DMH adult continuing care services. On January 2, 2001, DMH found Student ineligible for its services because she was found not to meet the requisite clinical criteria for DMH continuing care services. Student appealed, first through the DMH informal appeals processes, and then through a more formal DMH appeal, ending with a letter of March 9, 2001 from the DMH North East Medical Director, denying Student DMH eligibility. Joinder Request , at pages 1-2 (attached to this Decision as Appendix A and incorporated by reference).

In February 2001, Student applied for DMR services. By letter of February 28, 2001 from the DMR Metro North Area Director, Student was determined to have “General Eligibility” for DMR services and supports. Pursuant to this letter, Student was assigned priority 1 (the highest of the four priorities) for service coordination and for consumer initiated individual supports, and priority 4 (the lowest of the four priories) for residential supports, day/work supports, transportation supports and service coordination.2 Exhibits S-10, P-18.

DMR representatives attended an IEP Team meeting at BayRidge Hospital on March 19, 2001. The DMR representatives took the position at that meeting (as they had at a February 2001 meeting at BayRidge) that DMR would not be providing Student with residential services until Student turned 22 years old. The DMR representatives explained that the reason for their agency’s position was that Student would be entitled to receive any needed residential services from Medford until that time. Testimony of Garand, Fromkin; Exhibit P-19 (meeting notes by the Victor School clinician, Ms. Fromkin)

In order to live safely in the community, Student needs residential services that include adult supervision. The adult supervision should include guidance that will assist her to cope with any difficult issues that may arise – for example, processing with her an emotionally difficult situation. This adult supervision and guidance is necessary to ensure her safety. Student desires to live in a community residence with others her age. Testimony of Sebastianelli, Garand, Mother, Student, Doak, Fromkin.

In addition to the above-referenced adult supervision, Student needs on-going supervision regarding her psychiatric medications and weekly sessions with a therapist. Beyond the more traditional academic needs which have been addressed at the Victor School, Student would benefit from assistance in developing her socialization abilities and learning daily living skills – for example, shopping, management of money, transportation, obtaining employment. These services can be provided during the day. Testimony of Bernstein, Student, Garand, Sebastianelli, Doak, Fromkin.

Although the most recent IEP (Exhibit S-18, P-4), calling for continuation at Victor School, has been rejected by Student, Student is not objecting to that part of the IEP which provides for her to continue to attend Victor School. Exhibit P-26 (May 4, 2001 letter from Student’s attorney rejecting, in part, the IEP). Rather, Student desires to return to the Victor School as soon as possible. Medford is in full agreement with Student’s desire to return to the Victor School and has made arrangements with the Victor School so that she will be able to do so as soon as she is discharged from the BayRidge Hospital. Testimony of Student, Fromkin, Bernstein.

DMR and the Massachusetts Department of Education have entered into an Interagency Agreement entitled “Community Residential/Education Project.” One of the purposes of the Agreement is to provide for residential options for special education students who might otherwise require an educational residential placement. Exhibits S-27, S-28. This Agreement appears to be in effect during the current fiscal year. Exhibit S-27 (letter from DMR of November 10, 2000, indicating that the Agreement was in effect on that date).

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq . and the state special education statute, MGL c. 71B. As such, she is entitled to a free, appropriate public education which is reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Neither her status nor her entitlement is in dispute.

The issue to be decided is whether Medford or DMR may be found responsible for providing residential services to Student. Before discussing this issue directly, several factual issues will be addressed.

The uncontroverted testimony of Student’s treating psychiatrist and social worker at BayRidge is that since the end of January 2001, Student has no longer needed psychiatric hospitalization services, and she remains a patient in the Hospital only because there is no alternative, appropriate place for her to live. Testimony of Sebastianelli, Garand.

The uncontroverted testimony of Student’s treating psychiatrist and social worker at BayRidge is that it would be unsafe for Student to return home to live with her family. Mother also believes that it would both unsafe and inappropriate for Student to live at home. Student does not want to live at home. Testimony of Sebastianelli, Garand, Mother, Student.

The uncontroverted testimony of Student’s treating psychiatrist and social worker at BayRidge, the Director of the Victor School, Student’s clinician at the Victor School, Mother and Student herself is that Student needs to receive residential services in the community, and that these services should be provided in a group living situation with adult supervision. Testimony of Sebastianelli, Garand, Doak, Fromkin, Mother, Student.

The uncontroverted testimony of Student’s social worker at BayRidge and the Medford Special Education Team Leader for Student is that since February 2001, Student has received no educational services and is likely to continue to be denied the special education and related services which she is legally entitled to receive until she is discharged from the Hospital and resumes living in the community. Testimony of Garand, Caldwell.

Accordingly, I find that Student is no longer appropriately hospitalized at BayRidge, she may not return home as it would be unsafe to do so, she requires appropriate residential services (including adult supervision) in the community, she will be discharged from the Hospital only when these services are provided to her, and she will continue to be denied the special education services which she is legally entitled to receive until she is discharged from the hospital and resumes living in the community.3

Student has only a limited number of possible providers of the requisite residential services which are the key ingredient to discharge from BayRidge and resumption of her special education services at the Victor School. As explained above, she cannot return home. Student is 19 years old and not appropriate for services from the Massachusetts Department of Social Services. Student has been receiving and continues to need psychiatric treatment for her depression. However, the Massachusetts Department of Mental Health (DMH) has found her ineligible for services and, for the reasons explained in the Joinder Ruling at pages 17-18 (attached to this Decision as Appendix A and incorporated by reference), I have determined that DMH should not be a party to the present controversy. (I further note that the testimony of Student’s treating psychiatrist at BayRidge and the December 2000 neuropsychological evaluation of Student may be interpreted to support DMH’s decision that she is not eligible for their services. Testimony of Sebastianelli; Exhibits S-26, P-15.)

Consequently, the only public entities which may arguably be required to provide the requisite residential services to Student are Medford and DMR. If neither entity provides these services, Student is faced with an indefinite continuation of inappropriate psychiatric hospitalization and denial of special education services.

For the reasons explained in the Joinder Ruling at footnote 7, page 17 (attached to this Decision as Appendix A and incorporated by reference), if Medford is found to be responsible for Student’s residential services, DMR should not be required to provide these services.

With this as the context, I now turn first to the question of Medford’s possible responsibility for Student’s residential services.

A. Responsibility of Medford Public Schools for Student’s Residential Services .

The federal First Circuit Court of Appeals has addressed the issue of when it would be appropriate to require a local school district to provide residential services as part of the district’s mandate to provide special education and related services. The Court first noted that the local school district may not be required to provide residential services “simply to remedy a poor home setting or to make up for some other deficit not covered by the [federal special education statute]” The Court then stated that the local school district is required to provide residential services “upon a finding that the minimal educational benefits to which [the student] was entitled could not be obtained in a day program alone ” (emphasis supplied). The particular student in that case would receive in his residential placement “training and reinforcement . . . that was essential in order for him to make any educational progress whatever.” Abrahamson v. Hershman , 701 F.2d 223, 227-228 (1 st Cir. 1983).4 See also Burke County Board of Education v. Denton , 895 F.2d 973, 980 (4 th Cir. 1990) (“[i]f residential placement is necessitated by medical, social, or emotional problems that are segregable from the learning process, then the local education agency need not fund the residential placement”).

The evidence in the present controversy was persuasive that Student does not require educational or related services within the residential component in order for her to receive the minimal educational benefits to which she is entitled – that is, to maximize her educational development. Rather, Student needs adult supervision and assistance to ensure her safety in the community and to otherwise compensate for her immaturity and cognitive limitations. In particular, assistance is needed when a stressful or difficult situation arises so that guidance can be provided Student in processing that situation. Student’s treating psychiatrist and social worker at BayRidge (both of whom have worked with Student on a daily basis, Monday through Friday, since her hospital admission), Student’s Education Team Leader at Medford, and the Director of Victor School together with Student’s Clinician at the School (both of whom have worked with Student during the entire time that Student has attended the Victor School) were consistent in their testimony regarding this issue. Testimony of Sebastianelli, Garand, Caldwell, Doak, Fromkin.

Several witnesses testified that it would be beneficial for Student to receive, as part of her residential services, assistance in the development of socialization skills and assistance/training with adult daily living skills – for example, money management, transportation and shopping. But, there was no disagreement from those who recommended these services that they could instead be effectively provided during the day. Testimony of Garand, Doak. The Victor School does not typically offer instruction in these kinds of adult living skills, but instruction in adult living skills as well as socialization skills are routinely offered to other students during the day through Medford’s educational programs. Testimony of Bernstein, Doak. I conclude that, although instruction in socialization and adult living skills are educational services which are important for Student’s educational development, particularly as they relate to her becoming more independent, these services can be provided during the day and need not be part of Student’s residential services. As the Court in Abrahamson made clear in the language quoted above, the need for services that can be provided during the day may not be used to transform what would otherwise be a non-educational residential service into an educational residential placement. 701 F.2d at 228.5

For these reasons, I conclude that Medford does not have responsibility to provide a residential educational placement for Student, pursuant to state and federal special education law.6

B. Responsibility of DMR for Student’s Residential Services .

I have previously determined in this matter that DMR may be found to have responsibility to provide the needed residential services to Student, in accordance with its statute, regulations and policy, and that a BSEA Hearing Officer has the authority to order DMR to provide Student with residential services, in accordance with the DMR statute, regulations and policy. Joinder Ruling at pages 12-17 (attached to this Decision as Appendix A and incorporated by reference). See also Exhibits S-27, S-28 (DMR/DOE Interagency Agreement to provide special education students with residential options). I now turn to the related question of whether, based on the evidence submitted at the Hearing on the merits, DMR should now be ordered to provide residential services.

In its written and oral arguments regarding Medford’s Motion to Join, DMR argued that it should not be ordered to provide residential services for two reasons.

First, DMR’s attorney has argued that DMR is never obligated to provide residential services to an individual between the ages of 18 and 22 who is still in school because the local school district is required to provide these services as part of the individual’s special education. DMR Memorandum in Opposition to Joinder of the DMR as Necessary Party , at page 2. DMR representatives at Student’s IEP Team meeting in March 2001 and an earlier meeting in February 2001, both of which were at BayRidge, provided essentially the same rationale for its decision not to provide residential services to Student, explaining that it is DMR’s position that the local school district (rather than DMR) is always responsible for providing residential services until Student ages out of special education at 22 years. Testimony of Fromkin, Caldwell; Exhibit P-19 (meeting notes by the Victor School clinician, Ms. Fromkin).

Admittedly there are extremely few special education students who cannot live at home, who are not able to receive residential services from the Massachusetts Department of Social Services or who would not be entitled to a residential educational placement from the local school district. In this context, DMR understandably seeks to adopt a general practice of avoiding responsibility for residential services when there are other public entities which may be willing and able to provide these services in the vast majority of cases.

Yet, the obvious fallacy in trying to maintain an ironclad rule against responsibility for residential services to any individual between the ages of 18 and 22 years old, based on the responsibility of the local school district to provide those services, is that the rule presumes what may turn out not to be true in an individual case, particularly after the facts are reviewed in detail. In the present controversy, the evidence presented at Hearing is persuasive that the local school district is not responsible for providing residential services to Student, and no other public entity (except for DMR) has been identified as possibly having this responsibility. See subsection A, supra , of this Decision. DMR’s first argument therefore fails based on the factual and legal findings in this case relevant to Medford.

DMR’s second argument relates to its prioritization of services. In DMR’s letter of February 28, 2001 (finding Student eligible for DMR services generally and for DMR residential services in particular), DMR assigned Student to priority 4 (the lowest of its four priorities) for residential services. Exhibits S-10, P-18.7

Prioritization of services occurs pursuant to standards contained within the DMR regulations.
(The single exhibit submitted into evidence by DMR for purposes of the Hearing on the merits is 115 CMR 6.07, which is the section of the DMR regulations addressing prioritization of services.) These regulations, intended to help determine how DMR resources should be utilized in the event that the need for a particular service exceeds its availability, are divided into two parts – one for “children and families” and the second for “adults”.

The child and family part of the prioritization regulations make reference to services which are used to support families of children as well as the children themselves. The use of the term “child” or “children” would appear not to apply to Student since she is 19 years old.8 However, the regulations within the same part also state more specifically that the child/family priorities refer to an “individual” who falls within either of the following two categories:

1. is under the age of 18 years, or

2. is between the ages of 18 and 22 years and is
in the care or custody of, committed to, subject to court-ordered supervision of or receiving 24 hour residential services through another public agency, including but not limited to the Department of Social Services, Department of Youth Services, Department of Mental Health, Department of Public Health, and state or local education agencies.

115 CMR 6.07(2).

Neither of these two categories applies to Student. She is not under the age of 18 years (she is 19 years old) and therefore does not fall within the first category. With respect to the second category, the only public entity (other than DMR) that is involved with Student is the local education agency (Medford). Student is not in the “care or custody of, committed to, subject court-ordered supervision of” Medford (this quoted language would likely never apply to a local school district), and Medford is not providing Student with “24 hour residential services.” Student therefore does not fall within DMR’s prioritization regulations applicable to children and families.

The second part of the DMR regulations regarding prioritization of services applies to adults. Because of Student’s age (19 years old) and because the prioritization language applicable to children and families does not apply to Student, I conclude that Student falls within the adult part of the prioritization of services regulations. 115 CMR 6.07(3).9

The highest priority applicable to adults (referred to as “first priority”) is when

Provision, purchase, or arrangement of supports10 available through the Department is necessary to remedy or prevent a serious or immediate threat to the health or safety of the individual or others.

115 CMR 6.07(3).

At the Motion Hearing, the DMR attorney maintained that Student should be considered to fall within the fourth priority of the children/family section of the DMR priority regulations. But, when asked by the Hearing Officer how DMR would respond if the individual with mental retardation in the present controversy were 30 years old (and therefore an adult who would not be entitled to receive any services through special education) and similarly stuck in a psychiatric hospital until a public agency provides residential services, the DMR attorney stated that the individual would likely be given the highest priority for services and DMR would seek to place the individual into its residential service system immediately. Apparently the DMR attorney came to his conclusion because inappropriate hospitalization alone is sufficient for DMR to place an adult into its first priority for residential services.

I now turn to the uncontroverted facts in this matter as they relate to the above-quoted language describing DMR’s first priority for adults who are eligible for DMR services.

Student is confined to a locked psychiatric unit because appropriate residential services have not been provided for her. For all practical purposes, her movement has been restricted to the unit, with exceptions only for medical appointments and several Hearings regarding the present controversy. Testimony of Sebastianelli, Garand, Student. I find that at BayRidge, Student is being denied her freedom from confinement.

On the BayRidge psychiatric unit, Student has formed relations with other patients, many of whom have been discharged. Student’s psychiatrist and social worker have noted her regression and greater depression as a result of her being extremely upset (including pounding walls, screaming) when friends have left the Hospital, while she remains behind with no clear end in sight regarding her hospitalization. Testimony of Sebastianelli, Garand, Student. I find that Student’s psychiatric hospitalization at BayRidge places her at immediate risk of emotional harm.

Student has significant cognitive limitations, with a full scale IQ of 63 and a diagnosis of mild mental retardation. Equally important, she has impaired judgement regarding her interactions with others, frequently does not understand social cues and, as a result, is at significant risk of victimization. Testimony of Sebastianelli, Garand, Doak, Fromkin, Mother; Exhibits S-26, P-15 (Neuropsychological Evaluation, dated December 2000, by Monica Gilboa, PhD). The Director of the Victor School also testified that if Student were attending a residential educational school where typically there are children with emotional and behavioral deficits, Student would be vulnerable to verbal and physical abuse because she has a tendency to say things or act in ways which put her at risk. Testimony of Doak. Bay Ridge is an acute, locked psychiatric unit with both male and female patients who are typically older than she. Student has already been assaulted once by a fellow male patient who punched her on the side of the head. Testimony of Student, Garand, Sebastianelli. I find that Student’s psychiatric hospitalization at BayRidge places her at immediate risk of physical harm.

Because of the extended period of time spent on the psychiatric unit, Student has been developing institutionalized behaviors (for example, becoming overly reliant on staff to get
her through difficult issues) which will make transitioning back to the community more difficult. There is a risk of further regression. She may also lose the ability to interact socially with more normal peers. Testimony of Garand, Fromkin; Exhibits P-7, S-24, S-25 (sworn declarations of Garand and Fromkin).

During the course of Student’s hospitalization, BayRidge staff arranged for Student to receive a neuropsychological evaluation from Monica Gilboa, PhD, on December 6 and 7, 2000 at Lexington Neuropsychology in Lexington, MA. Dr. Gilboa concluded: “I am concerned about the ‘iatrogenic’ effect of her staying in a psychiatric environment for much longer: she is likely to imitate and adopt dysfunctional behaviors which she otherwise would probably not engage in.” Exhibits S-26, P-15.

In addition, of course, Student is being denied all special education services as a result of her hospitalization. Testimony of Garand, Fromkin, Caldwell.

I find that Student’s psychiatric hospitalization at BayRidge places her at immediate risk of educational harm.

For these reasons, I further find that continued psychiatric hospitalization at BayRidge (as a result of the lack of residential services) places Student at immediate threat to her health. Medford is not responsible for providing residential services to Student, as discussed above in subsection A. Accordingly, residential services from DMR are necessary in order to remedy this situation.

Therefore, I conclude that in accordance with DMR’s own determination that Student is eligible for DMR residential services and in accordance with DMR’s regulatory standards governing the prioritization of its residential services, DMR should provide appropriate residential services to Student immediately.11

ORDER

The Massachusetts Department of Mental Retardation (DMR) immediately shall provide appropriate residential services to Student so that she will be able to receive the special education and related services to which she is entitled pursuant to state and federal special education law.

By the Hearing Officer,

William Crane

Dated: May 31, 2001

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline, 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Medford Public Schools BSEA # 01-3941

RULING ON MEDFORD PUBLIC SCHOOLS’ MOTION TO JOIN

THE MASSACHUSETTS DEPARTMENT OF MENTAL HEALTH AND

THE MASSACHUSETTS DEPARTMENT OF MENTAL RETARDATION

A. Introduction and Procedural History

This case is about a young woman who is stuck in a psychiatric hospital, unable to attend her special education program at the Victor School, because the local school district and two state human services agencies are unable to resolve their dispute as to which of them is responsible to provide residential services to her. This Ruling will address the question of whether and how this dispute may be resolved in order that Student may receive the special education services (at Victor School) to which she is entitled under state and federal law.

On March 21, 2001, the Medford Public Schools (hereafter, Medford) filed with the Bureau of Special Education Appeals (hereafter, BSEA) a Request for Hearing, initiating the above-referenced case. Within the Request for Hearing, Medford asked for a BSEA order joining the Massachusetts Department of Mental Health (hereafter, DMH) and the Massachusetts Department of Mental Retardation (hereafter, DMR), and further asked for a BSEA order directing one or both of said agencies to provide residential services to Student.

By Order of April 6, 2001 (and supplemental Order of April 12, 2001), the Hearing Officer notified the parties that he would consider Medford to have filed a Motion to Join DMH and DMR, and he requested the parties (and DMH and DMR) to submit written argument prior to the Hearing. As part of their written arguments, DMH and DMR were directed to submit a copy of all DMH/DMR statutes, rules, regulations and policies that are relevant to the issue of whether DMH/DMR may or may not provide services to Student, and an analysis of the relevance of said statutes, rules, regulations and policies to the present controversy.

Written arguments were received on April 27, 2001. A Hearing on the Motion to Join was held on May 1, 2001.

B. Facts

Although many factual issues remain to be resolved if this matter proceeds on the merits, the essential facts, for purposes of this Motion, are not in dispute.

Student is nineteen years old (date of birth 10/14/81). She has been diagnosed with mild mental retardation, major depression and borderline personality disorder. She currently receives psychiatric treatment for depression.

Student is eligible to receive special education services pursuant to an accepted Individual Education Plan (hereafter, IEP). Medford is the local school district responsible for providing Student with special education and related services pursuant to state and federal special education law. For the current school year, Student was placed as a day student at the Victor School in Concord, MA, pursuant to her IEP while she lived at home in Medford.

However, since October 30, 2000, Student has been hospitalized on a DMH-licensed, locked psychiatric unit at the BayRidge Hospital, a private hospital located in Lynn, MA (hereafter, BayRidge). Although Student received tutorial services during part of this time (until February 1, 2001), her hospitalization has precluded (and continues to preclude) Student from attending the Victor School and receiving the special education services set forth in her IEP.

For some period of time, Student has no longer needed inpatient psychiatric services. For reasons that appear complex and need not be resolved for purposes of this Motion, Student has not been able to return home and live with her family. It is not anticipated that this situation will change in the near future. Because of her age and multiple disabilities, Student is not able to live independently in an unsupervised setting. Absent alternative, appropriate residential services, Student remains on the locked psychiatric unit at BayRidge Hospital.

On August 7, 2000, Student applied for DMH adult continuing care services. On January 2, 2001, DMH found Student ineligible for its services because she was found not to meet the requisite clinical criteria for DMH continuing care services. Student appealed, first through the DMH informal appeals processes, and then through a more formal DMH appeal, ending with a letter of March 9, 2001 from the DMH North East Medical Director, denying Student DMH eligibility.

In February 2001, Student applied for DMR services. By letter of February 28, 2001 from the DMH Metro North Area Director, Student was determined to have “General Eligibility” for DMR services and supports. Pursuant to this letter, Student was assigned priority 1 (the highest of the four priorities) for service coordination and for consumer initiated individual supports, and priority 4 (the lowest of the four priories) for residential supports, day/work supports, transportation supports and service coordination.12 Student is presently receiving service coordination from DMR.

C. Positions of the Parties, DMH and DMR

Medford has taken the position that although Student needs residential services, these services are not educationally related and consequently not mandated under state and federal special education laws. Arguing that it therefore has no responsibility to provide Student with a residential educational placement, Medford has refused to offer residential services to Student. Medford takes the position that it is DMH and/or DMR who bear responsibility for Student’s residential services.

Although not taking a position as to whether Medford, DMH or DMR should ultimately be responsible for Student’s residential services, Student seeks joinder to ensure that her residential needs are met as well as her other needs which may be appropriately addressed through DMH or DMR services. Student notes that her need for residential services is at least in part educationally-related.

Without disputing Student’s need to receive psychiatric services (including acute psychiatric services at times), DMH has taken the position that Student’s needs are related primarily to mental retardation, not mental illness, and that ongoing treatment of any mental illness should occur in a setting appropriate for persons diagnosed with mental retardation. In any event, DMH asserts that Student is not eligible for its services, that even if Student were eligible, DMH can not be required by the BSEA to serve Student, and therefore that DMH is not a necessary party to this controversy and should not be joined.

Although not disputing either Student’s eligibility for DMR residential services or Student’s need for residential services, DMR has taken the position that “DMR does not provide, nor is it obligated to provide residential services to individuals between the ages of 18 and 22 who are still in school and entitled to receive a public education in a regular educational environment.” DMR Memorandum in Opposition to Joinder of the DMR as Necessary Party , at page 2. DMR has therefore refused to provide Student with residential services, arguing that it is the responsibility of Medford (as the local school district) to do so, and therefore there is no justification for joinder of DMR.

D. Analysis of the Law

1. Introduction.

Federal special education law requires Massachusetts (and all other states receiving federal funds under the Individuals with Disabilities Education Act) to provide each eligible child with special education and related services which address the unique needs of that particular individual. 20 USC 1412. Although some states have chosen to provide the requisite special education services through multiple public entities, Massachusetts has opted, through its state special education law, to place this responsibility on the local school district where the child resides. MGL c. 71B, s. 3.

Federal special education law further requires Massachusetts to have an appeals mechanism pursuant to which special education disputes can be resolved and services ordered in order to ensure that each child receives those special education and related services to which he or she is entitled. 20 USC 1415(f) et seq.; 34 CFR 300.507, et seq. Massachusetts has created the BSEA for this purpose. MGL c. 71B, s. 3; 603 CMR 28.08(5) and (6). BSEA has adopted procedural rules pursuant to this authority. Hearing Rules for Special Education Appeals .

Both the federal and state law (and regulations and rules thereunder) include various procedural safeguards (for example, time lines by which a final decision needs to be rendered by the BSEA Hearing Officer) and both authorize the BSEA Hearing Officer to order such educational placement and services as the Hearing Officer deems appropriate, consistent with federal and state special education law. 20 USC 1415(f) et seq.; 34 CFR 300.511; MGL c. 71B, s. 3; 603 CMR 28.08(5) and (6); Hearing Rules for Special Education Appeals . The federal special education law requires that the BSEA Hearing Officer’s decision be final, except for the right of parties to appeal to court. 20 USC 1415(i).

Because of the general responsibility of the local school district for provision of special education services, nearly all disputes can be resolved by the BSEA through a determination of what services should be provided by the school district, and then, in an appropriate case, ordering the school district to provide those services.

It is not unusual for children who are eligible for special education to also be in need of services that are provided by a state human service agency (such as DMH, DMR or the Massachusetts Department of Social Services). However, only very occasionally are the provision of the requisite special education services dependent upon the child’s receiving those additional services from the human service agency.

In those situations where an additional party (such as a state human service agency) is necessary in order for the BSEA to provide a child with complete relief regarding the services to which she is entitled under state and federal special education law and the additional party declines to provide the needed services or assistance, the parties have looked to BSEA Rule 1F. This Rule provides that in a dispute involving special education and related services, a Hearing Officer may allow for joinder of a party 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.

In the past, when ruling on a motion to join a state human service agency, the BSEA Hearing Officer was often faced with a dilemma. It may be clear to the Hearing Officer that the human service agency’s services are essential to a full resolution of the special education claim (and therefore Rule 1F would appear to be satisfied), but the BSEA had no explicit statutory or regulatory authority to order such an agency to provide the needed services. The BSEA Hearing Officers’ decisions have been split. Some have denied joinder, citing the lack of obligation of the human service agency to provide the needed service and thereby limited any relief to an order against the local school district. E.g., In re: Boston Public Schools , BSEA # 00-1667, 6 MSER 14 (1/24/00). Other decisions have joined a state agency, for example, when the human service agency was already involved with the child and the agency’s specialized expertise would assist all parties to design and implement an appropriate special education program. E.g., In re: Greater Lawrence Regional Vocational High School and North Andover Public Schools , BSEA # 99-3370, 5 MSER 112 (9/13/99).

The Massachusetts legislature and the Massachusetts Department of Education (hereafter state DOE) recently and for the first time adopted measures to address explicitly this issue.

2. State law and regulation regarding resolution of disputes with state agencies.

The state DOE regulations governing the BSEA were amended in September 2000 on an emergency basis and finalized in January 2001. The regulations include new language regarding the jurisdiction of BSEA Hearing Officers over state agencies. The regulatory language 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.

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 [of Education], 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).

603 CMR 28.08(3).

Statutory language, taking effect January 1, 2001, further clarified this issue by granting to Hearing Officers the critical ingredient missing in the above regulatory language – that is, the authority to order a state agency (including DMH and DMR) to provide services in an appropriate case.

The [BSEA] 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.

Chapter 159, section 162 of the Acts of 2000, amending MGL c. 71B, s. 3 (hereafter, Section 162).

3. Purpose of the statute and regulations.

There appear to be no judicial decisions and no other BSEA decisions interpreting the authority of the BSEA Hearing Officer under the relatively new statutory and regulatory language quoted above. Also, as will be evident in the discussion below, the statutory language is not entirely clear on its face, and the words themselves may be interpreted in several different ways. As a result, it will be helpful to understand at the outset the purpose of the statute (Section 162) so that issues of statutory construction may be resolved consistently with the intent of the legislature.

Although there appears to be no legislative history to guide our understanding of Section 162, there is a provision of the federal special education law which may be helpful. The federal law requires that when a state has multiple, public entities responsible for providing the requisite special education and related services, the state must have a coordinating mechanism in place. 20 USC 1412 (12)(A). The accompanying federal regulations further require that the state have an interagency agreement or other mechanism for interagency coordination between the state DOE and the other state agencies responsible for providing services “in order to ensure that all services described in paragraph (b)(1) of this section that are needed to ensure FAPE [i.e., the requisite special education and related services] are provided.” 34 CFR 300.142(a). The above-quoted state DOE regulations require that the jurisdiction of the BSEA over state agencies be exercised consistent with these federal regulations. 603 CMR 28.08(3).

A federal Circuit Court, analyzing the predecessor of the current federal language, explained:

Both a general, congressional perception of the state’s primary responsibility to provide a publicly-supported education for all children and a specific intent to centralize this responsibility underlie this explicit statutory mandate. [Footnote omitted.]

The legislative history indicates that the full committee considered the establishment of a single agency on which to focus responsibility for assuring the right to education of all handicapped children to be of paramount importance:

Without this requirement, there is an abdication of responsibility for the education of handicapped children. Presently, in many States, responsibility is divided, depending upon the age of the handicapped child, sources of funding, and type of services delivered. While the committee understands that different agencies may, in fact, deliver services, the responsibility must remain in a central agency overseeing the education of handicapped children, so that failure to deliver services or the violation of the rights of handicapped children is squarely the responsibility of one agency .

See S. Rep. No. 168, 94th Cong., 1st Sess. 24 reprinted in [1975] U.S. Code. Cong. & Ad. News 1425, 1448. [Emphasis supplied.]

Kruelle v. New Castle County School District , 642 F.2d 687 (3 rd Cir. 1981).

An analogy between Section 162 and this federal requirement is not exact since Section 162 goes further by contemplating, in an appropriate case, a BSEA order that the human service agency provide services in addition to what the local school district may be required to provide. See discussion below in part D4 of this Ruling. Nonetheless , the essential purpose of Section 162 is consistent with what is required by federal law and with what was intended by Congress. In the words of the Kruelle court, Section 162 and the accompanying state regulations intend for the BSEA to be the “central agency overseeing the education of handicapped children” with responsibility to resolve any “failure to deliver services or the violation of the rights of handicapped children” relative to their protections under federal and state special education law.

Section 162 may be understood as providing a mechanism that can ensure that Massachusetts fulfills its federal and state special education obligations. As explained above in part D2 of this Ruling, occasionally a state human service agency’s cooperation and participation may be necessary in order for a child to receive the requisite special education services. The facts of the present controversy provide one such example. Student’s agreed-upon special education services at the Victor School cannot be accessed until she receives residential services, and arguably the appropriate agency to provide those services is DMH or DMR. Until this dispute is authoritatively resolved, Student will continue to be denied the special education services (at Victor School) to which she is entitled pursuant to her agreed-upon IEP. The legislature has provided Section 162 in order to ensure that these kinds of disputes are resolved appropriately.

An essential purpose of Section 162 and the accompanying regulations may therefore be stated as providing a mechanism (through the BSEA) to ensure that all services necessary for a student to receive what he or she is entitled to under special education law will in fact be provided, even when those services must be provided by one of the referenced human service agencies.

I now turn to two particular phrases within the law which are critical to its meaning, and ultimately to a determination as to whether DMH or DMR should be joined in this matter.

4. Meaning of the words “services . . . in addition to the program and related services to be provided by the school committee. ”

Section 162 authorizes the BSEA Hearing Officer to determine that a state agency must provide “services . . . in addition to the program and related services to be provided by the school committee.”

This quoted language clearly contemplates that a state agency may be responsible for services over and above what a BSEA Hearing Officer may find to be the responsibility of the school district13 under state and federal special education law. But, this language, on its face, is not clear as to the limits regarding the services that may be ordered – for example, could the BSEA Hearing Officer order a state agency to provide any services which are normally the responsibility of that agency?

Such an interpretation would lead the BSEA Hearing Officer into disputes that may have no impact upon whether the child receives his or her requisite special education and related services. The BSEA Hearing Officer could become, in effect, the arbiter of all human services for children.

Given the essential purpose of Section 162 (as discussed immediately above in part D3 of this Ruling) and the statutory and regulatory role of the BSEA to resolve disputes regarding special education disputes, it seems unlikely that the legislature intended Section 162 to be read this broadly. Cf. Dowell v. Commissioner of Transitional Assistance , 424 Mass. 610, 613 (1997) ( “provisions of legislation addressing similar subject matter are to be construed together to make an harmonious whole consistent with the legislative purpose”). Rather, an order of the BSEA that a human service agency provide services should be limited to what is necessary to ensure that the federal and state special education obligations to a child are satisfied.

I conclude that a BSEA Hearing Officer has the authority to order a human services agency to provide services beyond what the Hearing Officer determines to be the responsibility of the school district. Such an order should be limited to what is necessary to ensure that the federal and state special education obligations to a child are satisfied.

5. Meaning of the words “in accordance with the rules, regulations and policies of the respective agencies. ”

A BSEA Hearing Officer’s determinations under Section 162 must be “in accordance with the rules, regulations and policies of the respective agencies.” A clear understanding of the reach and meaning of these words is necessary in order to understand a BSEA Hearing Officer’s authority under Section 162.

At the outset, it may be helpful to review, in summary fashion, the relevant statute, rules, regulations and policies of DMH and DMR. As noted earlier in this Ruling, DMH and DMR were directed by the Hearing Officer and have provided a copy of all relevant statute, rules, regulations and policies. After reviewing the documents submitted by DMH and DMR and considering their arguments, it seems apparent that for both agencies there are no relevant polices (none were submitted by the agencies), and the statutory language provides only general guidance. Each agency’s detailed standards and procedures are contained within its regulations.

The DMR regulations, entitled “Eligibility, Individual Support Planning and Appeals,” describe DMR’s standards regarding eligibility for services, individual service planning, prioritization of its services, and appeals process. The regulations reflect the role of DMR staff in determining the priority of its clients and allocating resources accordingly. 115 CMR 6.00 et seq.

The DMR appeals process utilizes an informal process, as well as a formal process that includes a hearing by a DMR-appointed Hearing Officer. The DMR Hearing Officer is to provide to the DMR Commissioner a “recommended decision.” It is only the findings of fact within the recommended decision that are binding on the Commissioner. After making any modifications to the Hearing Officer’s recommended decision (for example, regarding analysis of the law), the Commissioner issues a decision “which shall be the final decision of the Department on all issues.” 115 CMR 6.33. T he regulations do not include language giving a DMR-appointed Hearing Officer the authority to order services for a client.

DMH has regulations similar to those of DMR. The DMH “Service Planning” regulations provide the central legal standards governing DMH eligibility and services relevant to Student. The stated purpose of these regulations is to provide a “framework by which DMH continuing care services are provided in the community . . . .” 104 CMR 29.01(3). These DMH regulations explain, among other things, the general responsibility of DMH to provide mental health services, eligibility for DMH continuing care services (including clinical criteria), assessment of mental health service needs, development of an Individual Service Plan (hereafter, ISP) and Program Specific Treatment Plan, and termination of mental heath services. 104 CMR 29.03 – 29.14.

DMH regulations also include an appeal (both formal and informal) of eligibility and service planning issues. The informal appeals process differs somewhat depending on whether the appeal is of a denial of eligibility based upon clinical criteria or the appeal is of other issues. The latter includes an informal conference with the DMH Area Director or designee while the former also includes review by certain clinical people within DMH (and ultimately a review by the Deputy Commissioner for Clinical and Professional Services). There is then the right to a “fair hearing” before a DMH-appointed Hearing Officer whose written decision becomes “the final decision of [DMH] on all issues” unless a re-hearing is ordered by the Commissioner. 104 CMR 29.15(5). Among the issues that may be appealed under these regulations are (1) whether denial of DMH eligibility has a “reasonable basis,” (2) whether the mental health services identified in the client’s ISP are “consistent with the client’s needs” and in the “least restrictive setting possible” and (3) whether the ISP is being “implemented in accordance with 104 CMR 29.00.” 104 CMR 29.15(2). The regulations do not include language giving a DMH-appointed Hearing Officer the authority to order mental health services for a client.14

Time lines and other procedural requirements are set forth in both the DMR and DMH regulations. 115 CMR 6.33; 104 CMR 29.15.

There are several possible interpretations of the “in accordance with” language found in Section 162. One option is to take the position that the legislature intended the BSEA Hearing Officer to be able to act only under the provisions of the state agency statute, regulations and policies when considering whether to order services by that agency. This interpretation would likely lead to a conclusion that the BSEA Hearing Officer’s powers are limited to the express authority granted to a DMH- or DMR-appointed Hearing Officer.

Under this reading of the law, the BSEA Hearing Officer would have no more authority than the DMH or DMR Hearing Officer to order DMH/DMR services. In addition, the BSEA Hearing Officer would have to comply with procedural rules and obligations imposed by the DMH/DMR regulations on its own Hearing Officer. Yet, within the same controversy, the BSEA Hearing Officer would be addressing a special education dispute that requires the Hearing Officer to comply with procedural and substantive standards governing a BSEA Hearing. See part D1 of this Ruling for a discussion of the procedural and substantive standards governing a BSEA Hearing Officer. The BSEA Hearing Officer would be faced with conflicting rules and obligations, and would lack the authority to order the human services agency to provide services.

This statutory reading of Section 162 would result in the law becoming, for all practical purposes, meaningless as a vehicle for effectively resolving disputes with DMH and DMR regarding the rights of special education students – a result at odds with the underlying purpose of the statute, which is to provide for resolution of disputes impacting on the special education rights of children. See part D3 of this Ruling for a discussion of the purpose of Section 162. The statute should not be so interpreted if there is an alternative, reasonable construction. Cf. Commonwealth v. Wallace , 431 Mass. 705, 708 (2000) (statute should not be interpreted “in such a way as to make a nullity of its provisions if a sensible construction is available”); Champigny v. Commonwealth , 422 Mass. 249, 251 (1996) (court declined to read statute in a manner that the “legislative effort would have had no practical effect”).

An alternative interpretation of the “in accordance with” language is that the BSEA Hearing Officer must act in a way that is consistent with and in harmony with the substance of the state agency statutory, regulatory and policy standards, as they may be read to be relevant to the particular special education student. See Black’s Law Dictionary (6 th Ed. 1990) (“accordance” defined to mean agreement, harmony, concord, conformity); but, cf. Black’s Law Dictionary (7 th Ed. 1999) which does not include a definition of “accordance.”

In other words, the BSEA Hearing Officer acts “in accordance with” the DMH and DMR statute, regulations and policies to the extent that they present certain over-arching standards with respect to the kinds of clients the agency serves (that is, the agency’s eligibility standards) and the kinds of services the agency provides (for example, case management, service coordination, individual therapeutic services, transportation services, residential services, etc.) to the particular individual who is the subject of the dispute.

This approach allows Section 162 to be read together with the DMH/DMR statutes so as to give effect to Section 162 in a way that is consistent with the underlying purposes of all applicable statutes (and their accompanying regulations). This interpretation of Section 162 follows established principles of statutory construction where one of several readings of the law would result in its becoming superfluous. See Bankers Life and Casualty Co. v. Commissioner or Insurance , 427 Mass. 136, 140 (1998) (“statute must be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous”); American Family Life Assurance Co. v. Commissioner of Insurance , 388 Mass. 468, 473 (1983) (court should “not construe the statutory language so that it is inconsistent with other portions of [a statute] when the language can fairly be interpreted to lead to a logical and consistent result”).

The application of these principles of statutory construction to the words “in accordance” is illustrated in the Massachusetts Supreme Judicial Court’s decision in Willand’s Case, 321 Mass. 677 (1947). The statute in question provided that it is the duty of the Superior Court to “render a decree in accordance” with the decision of the state Industrial Accident Board. Rather than concluding that the Superior Court was bound to apply literally the Industrial Board’s decision, the SJC concluded that the Superior Court should enter a decree that is “required as matter of law by the facts set forth in the decision of the board unless the decision is unsupported by evidence or tainted by error of law.” Id. at 678 (internal quotations and citations omitted). The Court applied a definition to the words “in accordance” which is consistent with the particular context and purpose of the law, rather than adopting a more literal or strict meaning that would lead to an unreasonable result.

For these reasons, I conclude that an order of the BSEA Hearing Officer for a human service agency to provide services must be consistent with that agency’s statutory, regulatory and policy standards setting forth what services are delivered by the agency and to whom those services are provided. The BSEA Hearing Officer should act pursuant to the federal and state statutes, regulations and procedural rules specifically governing BSEA proceedings rather than stepping into the shoes of (and operating under the statutes, regulations and procedural rules governing) a Hearing Officer appointed by the human service agency.

6. Conclusions as to the authority of the BSEA Hearing Officer to order services.

From this analysis, I draw the following conclusions regarding the authority of the BSEA Hearing Officer (under Section 162 and accompanying regulations) to order DMH or DMR to provide services to Student in the present controversy.

1. An essential purpose of Section 162 (and accompanying regulations) is to provide a mechanism (through the BSEA) to ensure that all services necessary for a student to receive what he or she is entitled to under special education law will in fact be provided, even when additional services must be provided by one of the referenced human service agencies.

2. A BSEA Hearing Officer has the authority to order a human services agency to provide services beyond what the Hearing Officer determines to be the responsibility of the school district. Such an order should be limited to what is necessary to ensure that the federal and state special education obligations to a child are satisfied.

3. An order of the BSEA Hearing Officer for a human service agency to provide services must be consistent with that agency’s statutory, regulatory and policy standards setting forth what services are delivered by the agency and to whom those services are provided.

4. The BSEA Hearing Officer acts pursuant to the federal and state statutes, regulations and procedural rules specifically governing BSEA proceedings rather than stepping into the shoes of (and operating under the statutes, regulations and procedural rules governing) a Hearing Officer appointed by the human service agency.

E. Findings and Conclusions

BSEA Rule 1F provides that a Hearing Officer may allow for joinder of a party 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.

In the present controversy, the issue of joinder may be addressed regarding DMH and DMR by answering two questions. First, may DMH or DMR be found to have responsibility to provide the needed residential services to Student, consistent with the DMH/DMR statute, regulations and policy? Second, may a BSEA Hearing Officer order those services, consistent with the DMH/DMR statute, regulations and policy?

Only if both questions are answered in the affirmative would DMH and/or DMR be a necessary party and it would be appropriate to join the agency.

1. The Department of Mental Retardation.

I turn to the first question : – whether DMR may be found to have responsibility to provide the needed residential services to Student, consistent with its statute, regulations and policy. As explained earlier in this Ruling, DMR has already found Student to have “General Eligibility” for DMR services and supports, and has assigned her priority 4 for residential services. DMR does not dispute that Student meets the DMR standards regarding eligibility generally and eligibility for residential services in particular. Therefore, it may be concluded that DMR has accepted, at least in principle, its responsibility for the provision of residential services to Student.

DMR argues, however, that even though she meets eligibility standards for residential services, DMR should not be required to provide these services to Student at least until she has reached the age of 22 years and is no longer eligible for special education services. In support of this position, DMR makes two arguments based on its regulatory standards.

First, DMR argues that it should not provide residential services because its regulations provide:

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.

115 CMR 6.07(2).

There are several weaknesses with this line of argument. First, the relied-upon regulation applies only to a “child.” Although not defined within the DMR regulations, the term “child” normally means an individual who has not reached the age of 18 years.15 Student is 19 years old. A second weakness in DMR’s position is that even if Student were considered to be a “child,” the remaining terms of the regulation do not apply. The regulation contemplates that a child’s parents are responsible for providing a home and parental care and guidance unless the parents are absent or incapacitated, in which case, the regulations anticipate that the child would be the responsibility of the Department of Social Services (DSS). Although Student’s parents are not technically absent or incapacitated, it is not disputed that Student cannot return home. She is of adult age and has significant, multiple needs based on her various disabilities. It may not be assumed that parents are either responsible or capable of providing a home for her, nor does DMR argue to the contrary. Under these circumstances, the DMR regulations indicate that DSS should have responsibility for providing a home, but DSS only extends its services to persons who have not yet reached their 18 th birthday, and Student is 19 years old. For these reasons, the cited regulations appear to be inapplicable to Student.

Second, DMR argues that Student was informed at the time of her eligibility that her priority for residential services was a 4, which is the lowest priority. DMR further argues that pursuant to its regulations, priority 4 is allocated and appropriate under the follow circumstances:

The child is eligible but is currently in the care or custody of, committed to, subject to court-ordered supervision of or receiving 24 hour residential services through another public agency, including but not limited to the Department of Social Services, Department of Youth Services, Department of Mental Health, Department of Public Health, and state or local education agencies.

115 CMR 6.07(2)(d). DMR argues that this regulatory priority setting (placing Student in the lowest priority) should preclude Student from receiving residential services.

There are several weaknesses with this argument. First, the DMR regulation applies only to a child, and for the reasons explained above, Student is not and should not be considered a child since she is 19 years old. Second, the regulatory language is not applicable to the present situation since Student is obviously not in the care or custody, committed to, subject to court-ordered supervision of or receiving 24 hour residential services through the local school district, and no other public agency is involved with her care (other than DMR). In fact, for the same reasons, none of the four priorities pursuant to 115 CMR 6.07(2) apply to Student.16

Finally, DMR has stated through counsel in its written arguments and at the Motion Hearing that, in addition to any arguments based on statutory/regulatory language, it is DMR’s practice never to provide residential services to an individual until that person reaches the age of 22 years and therefore ages out of eligibility for special education services from the local school district. DMR counsel has explained that this general practice is not reflected, per se, in its statute, regulations or written policy, but is rather based on the responsibility of another public entity (the local school district) pursuant to special education laws to provide these services.

At the outset, I note that the DMR statutes creating the agency and enabling its regulations authorize “long and short-term residential care, educational services” (MGL c. 123B, s. 2) to “both children and adults” (MGL c. 19B, s. 13). And, I have found nothing within the DMR statutory, regulatory and policy standards that would preclude DMR from providing residential services to Student. Also, as discussed above, DMR does not dispute Student’s eligibility to receive residential services. DMR’s denial is therefore grounded neither on standards contained within its statute, regulations and policy nor on its eligibility standards, but rather on a desire to be the provider of last resort by applying a blanket assumption that the residential service needs of all special education students will be met by the school district (or by DSS or parents in an appropriate case).

The flaw in DMR’s analysis is its application of this blanket assumption to the facts of this particular controversy. Because the local school district (Medford) has disputed its responsibility for residential services under special education law, the question of whether or not Medford may be required to provide a residential educational placement can now only be determined by a BSEA Hearing Officer after a full evidentiary hearing on the merits.

I now turn to the second question : – whether a BSEA Hearing Officer has the authority to order DMR to provide Student with residential services, consistent with the DMR statute, regulations and policy.

On the basis of the above analysis of Section 162 and the above resolution of whether DMR may be found to have responsibility for providing the needed residential services to Student consistent with its statute, regulations and policy, I answer this second question in the affirmative.

The facts of the present controversy fall squarely within the kinds of disputes intended to be resolved by the BSEA under the authority of Section 162. Student is currently (and has for some time been) denied the services to which she is entitled pursuant to state and federal special education law. This denial is attributable to the failure of a public entity to provide her with needed residential services. Depending on the findings of fact and conclusions of law in an evidentiary hearing, responsibility for providing such residential services may fall either to Medford or DMR. There is nothing within DMR statute, regulations and policy that would preclude a BSEA order for residential services to Student pursuant to Section 162.

However, DMR makes several arguments to the contrary.

First, DMR argues that although its statute and regulations give DMR the authority to provide residential services, they “do not create any obligation [upon DMR] to provide . . . residential services . . . to children or adults in any environment.” DMR Memorandum in Opposition to Joinder of the DMR as Necessary Party , at page 5. Implicit within DMR’s argument is the proposition that it should be allowed discretion to decide how to allocate its resources and that the “in accordance with” language of Section 162 results in DMR’s statutory and regulatory discretion trumping any obligation to provide services pursuant to Section 162.

Through Section 162, the Massachusetts legislature has taken the unusual step of granting to an adjudicatory body (the BSEA) the authority, in an appropriate case and consistent with certain legal standards, to “determine . . . that services shall be provided by the department of mental retardation . . . in addition to the program and related services to be provided by the school committee.” Notwithstanding this explicit grant of authority and responsibility to the BSEA, DMR essentially argues that the legislature has not created an obligation through Section 162 unless the same obligation separately exists within the DMR statute or regulations. To agree with this position would place Section 162 in conflict with the DMR statute in a way that would render Section 162 meaningless not only for this Student but also for any other individual seeking a BSEA order for DMR services pursuant to Section 162.

DMH makes essentially the same argument as DMR – that is, that the DMH statutory and regulatory language permits DMH to decide what services to provide to its eligible clients because the DMH statute and regulations include no mandate to serve any particular individual, and therefore Section 162 may not be read to permit a BSEA order for DMH services even if Student had been found to be DMH eligible. This argument would apply equally to Student and to any other individual seeking a BSEA order for DMH services pursuant to Section 162.

The Department of Social Services (DSS) would undoubtedly have made a similar argument if Student had been under the age of 18 years and the joinder motion had been extended to it. The DSS statute and regulations do not include a legal mandate to provide services, and DSS has resisted any attempt (including by a court) to order DSS to provide particular services to persons within its care and custody. Charrier v. Charrier , 416 Mass. 105, 110 (1993). If DMR’s arguments are found to be persuasive regarding Student, the same arguments would be equally persuasive with respect to any BSEA order relevant to DSS services. Moreover, there is no reason to believe that the results would be different with respect to any of the other agencies referenced in Section 162.

In other words, accepting DMR’s arguments would be tantamount to rendering Section 162 meaningless with respect to any dispute before the BSEA involving any state. It is unlikely that the legislature intended to enact a statute that would immediately fall of its own weight and have no practical effect.

For the reasons explained above in part D5 of this Ruling, there is a reasonable interpretation of Section 162, consistent with its underlying purpose, which would avoid this result. When a reasonable interpretation exists to avoid one set of statutes effectively nullifying another statute, the courts have been clear in their desire to construe the statutes harmoniously. See, e.g., Dowell v. Commissioner of Transitional Assistance , 424 Mass. 610, 613 (1997) (“provisions of legislation addressing similar subject matter are to be construed together to make an harmonious whole consistent with the legislative purpose and to avoid rendering any part of the legislation meaningless”); Champigny v. Commonwealth , 422 Mass. 249, 251 (1996) (court declined to read statute in a manner that the “legislative effort would have had no practical effect”).

The interpretation of Section 162 that is proposed under part D5 of this Ruling would permit the BSEA to comply with its mandate under federal law – that is, to ensure that Student’s federally-required special education and related services are provided to her. See discussion in part D1 of this Ruling regarding federal special education law. See also 300 CFR 300.2(b) (providing that the federal special education regulations “[a]pply to all political subdivisions of the state that are involved in the education of children with disabilities, including . . . State agencies . . . .”) (emphasis supplied); cf. King v. Pine Plains Central School District , No. 95 CIV. 10365(WCC), 23 IDELR 976 (S. Dist. of NY 1996) (federal district court concluded that pursuant to 300 CFR 300.2(b), the NY Department of Social Services is “subject to the requirements of the IDEA”).

For these reasons, I decline to accept DMR’s argument that the lack of a DMR statutory/regulatory obligation (found explicitly within its own statute/regulations) precludes BSEA from issuing an order that DMR provide services pursuant to Section 162.17

Next, DMR argues that a BSEA order that DMR provide residential services would infringe upon DMR’s discretion to determine the particular services for Student. In support of this argument, DMR cites to an SJC decision, In the Matter of McKnight , 406 Mass. 787, 798 (1990), which overturned a lower court order that a DMR client be placed at a particular provider (BRI). The SJC explained that the lower court should have “left the determination of where David is to be treated in the discretion of [DMR] without requiring it to return to the court for approval of some other provider before David could be moved from BRI.”

The obvious retort to DMR’s argument is that a BSEA order need not identify a particular placement. A BSEA order that DMR provide residential services to Student would be a general order, giving discretion to DMR to determine which vendor should provide the services, the location of those services, and ultimately the particular placement. The only substantive limitation that need be placed on DMR by a BSEA order is that its residential services should be provided in a manner that would allow Student to participate in her legally-mandated special education program at the Victor School during the day. Such an order would be consistent with McKnight and therefore is arguably supported by it.

Finally, DMR argues that its services are necessarily voluntary, and a BSEA order for residential services would illegally result in “forcing the Student to live in a group home which would be paid for by DMR.” DMR Memorandum in Opposition to Joinder of the DMR as Necessary Party , at page 7. With all due respect to DMR, this is an insubstantial argument. The BSEA does not order (nor would it seek to force in any way) a student to participate in a particular service. Rather a BSEA order would run against DMR, requiring it to provide (and therefore make available to the student) the residential service.

For these reasons, the Motion to Join DMR will be allowed.18

2. The Department of Mental Health.

As with DMR, I begin the analysis regarding DMH by asking whether DMH may be found to have responsibility to provide the needed residential services to Student, consistent with its statute, regulations and policy.

DMH has determined Student not to be eligible for its continuing care services. After an informal and (part of) a formal appeal process, this determination was affirmed.

Student argues that there were procedural irregularities in the DMH eligibility process, the basis for the clinical judgment that DMH relied upon may be unsubstantiated, and the appeals process was, in effect, terminated apparently without notice of further appeal rights when DMH learned that Student had been found eligible for DMR services. These are substantial allegations of non-compliance by DMH with its own eligibility rules and processes.

At the Motion Hearing, the DMH attorney conceded that the letter from Dr. Simmons which effectively ended Student’s eligibility appeal should have advised Student of her right of appeal to the next level. He also agreed that the rationale used in that letter was not sufficient. Accordingly, he offered Student the option of either obtaining reconsideration from Dr. Simmons or appealing to the next level within ten days from May 1, 2001.19

It is apparent that the DMH eligibility process for this Student has not yet resulted in a final, fair determination.

For this reason, the Motion to Join DMH will be denied without prejudice and may be renewed at a later time.

Order

Medford’s Motion to Join DMR is hereby ALLOWED. Medford’s Motion to Join DMH is hereby DENIED without prejudice.

By the Hearing Officer,

_________________

William Crane

Dated: May 4, 2001


1

Since DMR did not participate in the Hearing on the merits, my understanding of the DMR position is based principally on the oral and written arguments made by the DMR attorney regarding the Motion to Join DMR.


2

The term “supports” is used and defined by DMR in its regulations to include services. 115 CMR 6.20(2).


3

Student and Medford do not dispute these facts. DMR did not dispute these facts in its written and oral arguments regarding the Motion to Join. See Joinder Ruling at pages 1-2. Similarly, at two meetings (February and March 2001) at BayRidge regarding Student, DMR representatives did not dispute that Student no longer needs to be in a psychiatric hospital, that she cannot go home and that she is therefore in need of residential services. Testimony of Fromkin, Caldwell.


4

I note that the Court in Abrahamson is addressing the need for residential services in a group home, which would be separate from the day school – a situation that is factually similar to the present controversy since it is agreed that Student should return to her day school (the Victor School) which does not have a residential component.


5

Upon discharge to the community, Student will also need continued treatment by a psychiatrist to manage her medication, as well as weekly therapy. Student had received these services during the day while attending the Victor School, and they can continue to be provided during the day after her discharge from BayRidge. Testimony of Sebastianelli, Fromkin, Garand.


6

It is unlikely that my conclusion would have been different regarding this issue had DMR participated at the Hearing. Student introduced evidence and made legal arguments for the purpose of seeking to demonstrate that Medford has responsibility to provide Student with an educational residential placement – in other words, she advocated for the same position that DMR would have taken. Also, the witnesses who testified at the Hearing have worked with Student on a daily basis over a significant period of time and are well equipped by profession and experience to testify persuasively as to Student’s current needs and how they can be met. Given DMR’s limited involvement with Student to date, it seems unlikely that additional testimony from DMR staff would have been persuasive in rebutting these other witnesses. In resolving special education disputes, courts have given extra weight to the opinions of those who know the student well. See, e.g., McKenzie v. Smith, 771 F.2d 1527, 1535 (D.C. Cir. 1985) (deferring to witnesses who “were thoroughly familiar with the records and reports covering [student] and had personally interviewed and observed him over a lengthy period of time”).


7

Priority 4, as explained in the enclosure in the DMR letter of February 28, 2001, states: “Provision, purchase or arrangement of the requested service(s) or support(s) to the individual is desired or necessary for any other reason.” See also footnote 9, infra , for further discussion of this issue.


8

The DMR regulations do not define the terms “child” and “adult”, but define a “minor” to be a person under the age of 18 years. 115 CMR 2.01. For purposes of construing statutes, “adult” is defined to mean any person who has attained the age of 18 years, “full age” is defined to mean 18 years of age or older, and “minor” is defined to mean a person under the age of 18 years. MGL c. 4, s. 7, cls. 48 th , 49 th , 50 th .


9

I also note that the statement of priority categories, that was referenced and included in the DMR letter to Student of February 28, 2001, is the DMR priorities for adults , as contained in 115 CMR 6.07(3). This DMR letter assigned Student priority 4 for residential services. Exhibits S-10, P-18. See also footnote 7, supra .


10

The term “supports” is used and defined by DMR in its regulations to include services. 115 CMR 6.20(2).


11

I also rely on relevant analysis in the Joinder Ruling (attached to this Decision as Appendix A and incorporated by reference), particularly with respect to my authority to order DMR to provide residential services (pages 14-17) and DMR’s potential responsibility to provide Student with residential services (pages 12-14).


12

The term “supports” is used and defined by DMR in its regulations to include services. 115 CMR 6.20(2).


13

The terms “school district,” “local school district” and “school committee” are used interchangeably in this Ruling.


14

In its Memorandum in Opposition to Joinder at footnote 3, DMH takes the position that an eligible client could claim that DMH is obligated to provide services described in his or her ISP but that this claim would be subject to appropriation and availability of services.


15

The DMR regulations define a “minor” to be a person under the age of 18 years. 115 CMR 2.01. For purposes of construing statutes, “adult” is defined to mean any person who has attained the age of 18 years, “full age” is defined to mean 18 years of age or older, and “minor” is defined to mean a person under the age of 18 years. MGL c. 4, s. 7, cls. 48 th , 49 th , 50 th . I also note that the DMR regulations use the word “individual” rather than “child” to refer to persons between the ages of 18 and 22 years. 115 CMR 6.07(2).


16

DMR regulations provide for prioritization of services for adults. 115 CMR 6.07(3). At the Motion Hearing, when asked by the Hearing Officer how DMR would respond if the individual with mental retardation in the present controversy were 30 years old (and therefore an adult who is well beyond the age of entitlement for special education services) and stuck in a psychiatric hospital until a public agency provides residential services, the DMR attorney represented that the individual would likely be given the highest priority for services and DMR would seek to place the individual into its residential service system immediately.


17

At a later point in its written argument, DMR makes essentially the same argument, citing to the SJC decision of Charrier v. Charrier , 416 Mass. 105 (1993). Charrier concludes that because DSS was not statutorily required to provide certain services, a lower court was in error in ordering DSS to provide such services. For the reasons explained above in the text, reliance upon Charrier is misplaced. The existence of Section 162 provides the critical statutory authority for an order to provide services that was absent in Charrier.


18

As a party in this matter, DMR will have an opportunity to participate in the hearing on the merits, including presentation of evidence and further argument, in order to seek to convince the Hearing Officer of Medford’s responsibilities regarding residential services. If Medford is found to have this responsibility, it is anticipated that DMR would not be required to provide residential services since the language of Section 162 indicates that a state agency’s responsibilities for services are those “in addition to the program and related services to be provided by the school committee.” Moreover, DMR will have an opportunity, at the hearing on the merits, to present evidence and further argument that it should not be ordered to provide residential services to Student under any circumstances.


19

The eligibility appeals process ended with a letter of March 9, 2001 from the DMH North East Medical Director (Dr. Simmons) which set forth Student’s eligibility for DMR services as the sole reason for denial of DMH eligibility. With respect to a denial of eligibility based on clinical criteria, the DMH regulations allow for further appeal to the DMH Deputy Commissioner for Clinical and Professional Services, and finally the right to a fair hearing before a DMH-appointed Hearing Officer. 104 CMR 29.15(3).