Amherst-Pelham Regional School Committee v. Department of Ed.

• Decision Date: 28 September 1978
• Docket Number: AMHERST-PELHAM
• Parties: REGIONAL SCHOOL COMMITTEE v. DEPARTMENT OF EDUCATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 922

381 N.E.2d 922

376 Mass. 480

AMHERST-PELHAM REGIONAL SCHOOL COMMITTEE v. DEPARTMENT OF EDUCATION.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued April 5, 1978.

Decided Sept. 28, 1978.

Marguerite M. Dolan, Turners Falls, for plaintiff.

Terry Jean Seligmann, Asst. Atty. Gen. (S. Stephen Rosenfeld, Asst. Atty. Gen., with her), for defendant.

C. Peter R. Gossels, Boston, for the town of Franklin and another, amici curiae, submitted a brief.

Jeffrey F. Jones, Boston, for School Committee of Lexington and others, amici curiae, submitted a brief.

David C. Trott and Lawrence Kotin, Boston, for the Federation for Children with Special Needs, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ. HENNESSEY, Chief Justice.

On October 7, 1975, the Amherst-Pelham Regional School Committee (school committee) instituted an action in the Superior Court seeking judicial review both of a decision rendered by the Bureau of Child Advocacy (bureau) ¹ and a ruling issued by the Department of Education (department) pertaining to that decision. The decision and ruling at issue concern the nature and scope of special educational services to be provided under c. 766 of the Acts of 1972 ² (c. 766) to a child with special educational needs.

On this question, a bureau hearing officer had determined that (1) an educational plan prepared by the school committee pursuant to its responsibilities under c. 766 was inadequate, and (2) the private residential program proposed by the parents was appropriate. Subsequent to this decision, the project director of special education had notified the school committee that it was responsible for the cost of private placement after the parents had rejected the school committee's proposed educational plan.

After reviewing the record of the proceedings, the judge concluded that the bureau's findings were supported by substantial evidence. He further decided that the procedure followed in rendering the bureau's decision, although irregular, did not constitute grounds for quashing the decision. The judge reported the case to the Appeals Court, however, on three questions of law concerning both the role of the school committee and the nature of the bureau's authority in implementing the provisions of c. 766. We granted direct appellate review.

The questions reported for our determination are: "(1). Is the . . . Department of Education authorized to order the placement of a child with special needs in a specific private residential institution without first affording the school committee . . . an opportunity to recommend an institution for such placement, where either the Bureau . . . or the State Advisory Commission on Special Education (SAC) has determined that a program proposed for such child by . . . the school committee is inadequate and that the program offered by the private institution is appropriate for the needs of the child?

"(2). Where either the Bureau or the (SAC) has determined . . . that a program proposed . . . by the school committee . . . and rejected by the parents . . . is inadequate, and where the parents . . . have, pending their appeal to the said Bureau or the (SAC), enrolled the child in a private institution which the said Bureau or the . . . (SAC) determines to have been appropriate, is the Department . . . authorized to order retroactive reimbursement to the parents by the (city, town or district), of all or part of the costs incurred . . . for instruction and support of the child at the private institution"; and, "(3) if so, to what date may such reimbursement be made retroactive?"

In addition, the school committee seeks appellate review of the judge's rulings with respect to agency procedure.

For the reasons discussed below, we answer the first two reported questions in the affirmative. As to the third question, we conclude that retroactive reimbursement to parents who have provided necessary services at their own expense, from the date at which they rejected the school committee's inadequate plan, is consistent with the statutory scheme.

Finally, we note that the procedural issues raised by the school committee are interlocutory in nature, and not properly before this court for review. See Reynolds v. Missouri, Kan. & Tex. Ry., 224 Mass. 379, 388, 113 N.E. 413 (1916). As the issues were briefed by both parties, however, we have reviewed the procedural claims and have found them to be without merit.

We summarize the facts. Chapter 766 of the Acts of 1972 took effect on September 1, 1974. ³ At that time, the child whose educational plan is the subject of this appeal was a resident of Amherst and had, for a number of years prior to 1973-1974, attended, and received special educational services in, the Amherst public schools. There is no dispute that the child suffers from a rather severe learning disability and, as such, is a "child with special needs" within the meaning of G.L. c. 71B.

By the end of the 1972-1973 school year, the child had completed the sixth grade and was about to be enrolled in the regional junior high school. The parents, however, were dissatisfied with the child's progress in the public schools, and so voluntarily placed him in a private school in Vermont during the 1973-1974 academic year.

In September, 1974, the parents enrolled the child in the Eagle Hill School, a private residential school located in Massachusetts. Additionally, they referred the child for evaluation in accordance with the newly effective c. 766. In compliance with the statute, a "core evaluation team" (CET) was assembled to develop an educational plan appropriate for the child's special needs. ⁴

On November 19, 1974, the CET proposed an educational plan under which the child would spend approximately 80% Of his school time in regular classrooms and approximately 20% Of that time in various in-school programs designed to provide assistance in mathematics and language arts. The parents rejected the plan on December 10, 1974.

After passage of a conciliation period (see 8 Code of Mass.Regs. Part 3, § 400.0 (May 28, 1974)), the CET convened with the parents and representatives of the Eagle Hill School in an effort to formulate a new plan. As a result of the conference, the CET submitted to the parents a revised plan which proposed that the child spend 57% Of his school time in regular classrooms and 43% Of his time in special programs. The parents rejected that plan on February 28, 1975, and requested a hearing pursuant to G.L. c. 71B, § 3.

The bureau held the requested hearing on May 6, 1975. After considering the testimony of several witnesses, including the chairman of the CET, officials of the Eagle Hill School, the director of the Learning Disabilities Center at Mount Holyoke College, and the parents, a hearing officer concluded: "(The child's) present situation, social, emotional, and educational is so tenuous that any placement other than a residential one . . . would be inappropriate. The specific program at Eagle Hill School . . . is appropriate to these special needs." The director of the bureau approved this decision on May 22, and the child's father accepted the ruling on September 8, 1975.

On September 24, 1975, a department official wrote a letter to the superintendent of the Amherst-Pelham public schools to clarify the bureau's decision. In the letter, it was asserted that: "1. The Amherst-Public Schools are responsible for providing the program and placement . . . for (the child) from the point of the initially rejected plan (December 10, 1974) until such time as the CET . . ., upon review of his progress at Eagle Hill, feels capable of providing a comparable program in the Amherst Public Schools . . .. 2. Responsibility for payment for this placement is that of the Amherst Public and should be retroactive to the date of the initially rejected plan . . .."

In October, 1975, the school committee commenced the present action for judicial review under G.L. c. 30A, § 14. Before the case was reached for trial, however, the following occurred.

On November 26, a judge of the Superior Court granted a motion by the department to remand the matter to the bureau for issuance of a decision containing findings of fact and statement of reasons in compliance with G.L. c. 30A, § 11(8). After reviewing both a transcript of the hearing and certain documentary evidence, a bureau hearing officer wrote a substitute decision which was filed in the Superior Court on December 23, 1975. A supplement to this decision, discussing an additional thirty pages of documentary evidence inadvertently omitted from the material provided to the hearing officer, was subsequently filed.

The substitute decision essentially affirmed the conclusions of the original hearing officer. In this decision, the bureau found that (1) the 57%-43% Educational plan proposed by the Amherst-Pelham CET was inadequate for the child; (2) even a 100% Program in the Amherst-Pelham school system would be presently inadequate to meet the child's special needs; and (3) the only appropriate program proposed at the hearing was the residential program offered at the Eagle Hill School. The hearing officer ruled, therefore, that the child should remain at the Eagle Hill School for the remainder of the 1975-1976 school year.

On February 9, 1977, just prior to trial, the department promulgated two "Policy Statements" in which it took the position that (1) the bureau had the authority to order retroactive payment of private school costs by school committees, and (2) the bureau had the authority, after hearing, to direct placement of students in particular private schools without prior consultation with the responsible school committees.

There was testimony that both policy statements accurately reflected the department's interpretation of the statute since its inception. It was stipulated by the parties, however, that no such...