Special Education Appeals BSEA #99-5005
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Amesbury Public Schools v. Berkshire Hills Regional School District et al.
BSEA # 99-5005
RULING ON AGAWAM PUBLIC SCHOOLS’ MOTION TO DISMISS
Amesbury Public Schools (hereafter Amesbury) filed a Request for Hearing before the Bureau of Special Education Appeals (hereafter BSEA) on the issue of its responsibility for the special education of Student. Amesbury contests the Massachusetts Department of Education’s (hereafter MDOE) assignment of fiscal responsibility, and names the Agawam Public Schools (hereafter Agawam), Berkshire Hills Regional School District (hereafter Berkshire) and MDOE as parties. Agawam now seeks to dismiss Amesbury’s Request for Hearing as against Agawam.
The facts are as follows. Student was placed at Berkshire Meadows, a 766-approved, private residential school located in Housatonic, MA, on or about June 5, 1997, pursuant to a 502.6 prototype IEP prepared by Agawam (Parents’ then residence), and signed by Student’s mother. At the time, Student was eighteen years of age, and did not have a legal guardian. Student’s parents moved from Agawam to Amesbury on or about July 30, 1997. Pursuant to M.G.L. c. 71B § 5, Agawam paid Student’s tuition at Berkshire Meadows for the 1997-98 fiscal year (i.e., from the date of his placement through June 30, 1998). Subsequently, MDOE assigned fiscal responsibility for Student’s placement at Berkshire Meadows to Amesbury, commencing July 1, 1998.
For the reasons set forth in Agawam’s Motion to Dismiss and its Response To Oppositions of Amesbury and Justice Resource Institute, Agawam’s Motion to Dismiss is hereby ALLOWED.
The arguments advanced by Amesbury in its Opposition to Agawam’s Motion to Dismiss are unpersuasive. Amesbury first contends that Agawam may be responsible for Student’s tuition on a “purely contractual basis, having secured the placement at Berkshire Meadows… without a valid IEP.” However, assuming, arguendo , that an action in contract would lie between Berkshire Meadows and Agawam, the BSEA does not have authority to adjudicate purely contractual disputes of this nature. See In Re: Timothy W. , BSEA # 96-3796, 2 MSER 213 (August 28, 1996). Thus, such an action would not be enforceable in this forum.
Amesbury further argues that Agawam may be fiscally responsible for Student’s 1998-99 tuition pursuant to 603 CMR 28.202.1(e), since Agawam was the last residence of Student’s mother before her parental rights ended on Student’s 18th birthday. However, Amesbury’s reliance on 603 CMR 28.202.1(e) is misplaced, as the conditions set forth in that regulation are not met in the instant case. An assignment under 603 CMR 28.202.1(e) may only occur with respect to children . . . who have neither a father, mother nor guardian living in the Commonwealth, or who have neither a father, mother or guardian whose residence can be determined in the Commonwealth, or who have been voluntarily surrendered for adoption by his or her father, mother or guardian, or who have been freed for adoption by the Probate Court. [603 CMR 28.202.1(e)]
None of these circumstances exists in the present case. Therefore, 603 CMR 28.202.1(e) does not apply.
By the Hearing Officer,
Dated: September 7, 1999