Services from State Agencies for Students with Special Needs

 Date 6-26-2013

 In the quest for comprehensive services for students with special needs, parents and advocates should not overlook state agencies such as the Department of Mental Health (“DMH”), the Department of Developmental Disabilities (“DDS”), the Department of Elementary and Secondary Education (“DESE”), and the Department of Children and Families (“DCF”).  While some, like DMH and DDS, devote the vast majority of their resources to adults who are no longer eligible for services from school districts, all state agencies do provide services to school-age individuals.  Their services range from minimal to extensive and can include afterschool, respite and even residential services.  Each agency’s websitehttp://www.doe.mass.edu/sped/links/state_agcy.htmland governing regulations  (see below) describe their programs and services, as well as eligibility criteria and application procedures.These state agencies can partner and coordinate with families and school districts to provide more comprehensive services for the student.  For example, DMH can assist in providing “wrap around” services to help with afterschool and home needs.http://www.mass.gov/eohhs/consumer/behavioral-health/mental-health/community-based-flexible-supports.htmlDESE has/had a grant program to provide services in families’ homes in addition to those provided by school districts to help stave off residential placements.DESE/DDS ProgramThere are often disagreements between school districts and social service agencies concerning who is responsible for funding the services or placements that the student needs. The Bureau of Special Education Appeals has the authority to “join” the social service agencies in disputes concerning the student’s educational needs.  The statute addressing the jurisdiction of a BSEA hearing officer over state agencies, M.G.L. c.71B, §3,https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter71b/Section3empowers hearing officers to join such agencies if services from those agencies may be necessary to provide “complete relief” to the student.  Joinder is appropriate in situations where the student will only be able to access or benefit from the school district’s special education program if services over and above those that are the responsibility of the school district need be provided by the human services agency.  However, the BSEA may only act in accordance with that human services agency’s own rules, regulations and policies.  For example, In In Re: Dennis-Yarmouth Regional School District, 16 MSER 204 (2010),http://www.doe.mass.edu/bsea/rulings/10-4763.pdfthe school district sought to join two state agencies, the Department of Developmental Services (“DDS”) and Department of Children and Families (“DCF”) in the dispute that the school district was having with the parents.  The student in question was non-ambulatory and had significant disabilities, including a progressive neurological disease, seizure disorder, and chronic respiratory failure.  In addition, he had a history of aggression and violence.  After residing in a series of hospitals and nursing homes, the student was placed residentially at Franciscan Children’s Hospital (“Franciscan”).  At the time of the hearing on the motion to join DCF and DDS, there was no dispute that Franciscan was no longer an appropriate placement, that the student could not live alone safely, and that he could not live with his adoptive parents.  Dennis-Yarmouth refused to provide a residential placement.  Therefore, the student was “stuck” in an inappropriate and possibly harmful placement.  The student’s guardian had filed the hearing request seeking a determination that Dennis-Yarmouth was responsible for providing residential services.  Dennis-Yarmouth took the position that the school district was not responsible for providing a residential placement because any need for residential services arose not out of the student’s educational needs, but from his medical needs and his need for housing.  Dennis-Yarmouth moved to join DDS and DCF, a motion the guardian supported.Concerning DDS, the twenty year old student was eligible for, and already receiving some services from, DDS.  DDS argued that its own regulations provided that DDS does not provide residential services to an eighteen to twenty-two year old if that individual was eligible for residential services from a school district. 115 CMR 6.07(2)(b).  This is the dilemma that often arises in these cases: the social service agency and the school district each claim that the other agency is responsible for paying for a residential placement.  In the Dennis-Yarmouth case,  the hearing officer reasoned that if he ultimately found that Dennis-Yarmouth was not responsible for residential services, nothing in DDS’s own regulations would bar the hearing officer from ordering DDS to provide them.  In contrast, the hearing officer found it highly unlikely that DCF could be required to provide residential services even if Dennis-Yarmouth were found not responsible for residential placement.  The student was not under the care or custody of DCF and was not an active client.  Given that the student was already twenty years old, it was unlikely that he would become a client in the future.  Therefore, the hearing officer allowed the joinder of DDS, but not DCF.Although there is no specific regulation discussing an agency’s ability to “share” the cost of a residential placement with a school district, cost shares are not uncommon.  The “cost share” arrangement may be delineated in the student’s IEP and/or in a written agreement among the parties.  Whether the agency’s agreement to share the cost of a residential placement with a school district gives the student “stay put” rights, meaning the cost share and placement must continue unless the parents agree to a change or a hearing officer orders a change -- is open to debate.  The hearing officer in Lowell Public Schools & Mass. Dept. of Children and FamiliesBSEA # 12-1912 http://www.doe.mass.edu/bsea/rulings/12-1912.pdfapplied stay put to DCF.  DCF agreed in the parties’ 2008 settlement agreement to pay the residential portion of student’s placement at the Perkins School for the Blind (Perkins) in Watertown, and continued to do so for two subsequent school years.  This cost share arrangement was delineated in the “additional information” section of the IEP.  When DCF announced that it would discontinue its funding of the residential portion, the parent filed a hearing request and sought a stay put order.  Even though DCF argued that the agency does not come under the auspices of the special education law (IDEA), the hearing officer held that when DCF joined in the funding of the student's placement at Perkins initially via the settlement agreement and subsequently through two subsequent IEPs, “DCF became inextricably involved with Student's special education and provided special education services to Student” and therefore DCF must comply with the stay-put protections of IDEA.We encourage families and their advocates to actively explore the possibilities of receiving helpful and sometimes essential services from state agencies.

• DMH Regulations: http://www.mass.gov/eohhs/gov/laws-regs/dmh/
• DDS Regulations: http://www.mass.gov/eohhs/gov/laws-regs/dds/
• DESE Regulations: http://www.doe.mass.edu/lawsregs/stateregs.html
• DCF Regulations: http://www.mass.gov/eohhs/gov/laws-regs/dcf/

Daniel T.S. Heffernan, Esq. is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.