STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
DCYF v. Warwick School Committee
RIDE Case No. 17-11
INTERIM ORDER
Student Doe is a child with a disability who, prior to being placed in the care and custody of DCYF earlier this year, lived with his mother in Central Falls. He now lives at a group home in Warwick, Rhode Island. His IEP calls for his placement in a therapeutic day school and he has attended the Bradley School in Providence for approximately three years. When neither DCYF nor any LEA would accept financial responsibility for Doe's education, his attendance at the Bradley School was interrupted.
An interim order is needed to ensure Doe's receipt of a free appropriate public education. An interim order is also needed to ensure that Doe receives the educational stability protections for children in foster care provided under the ESEA, as amended by the ESSA ("Every Student Succeeds Act"). Pending a full hearing and final decision, an interim protective order is entered against the Central Falls Board of Trustees to maintain this student in his school of origin (The Bradley School) pending the appointment of an educational advocate for Doe, a "best interest determination" and development of an educational stability plan as part of his service plan by DCYF. DCYF shall also collaborate with RIDE to develop and disseminate uniform statewide policies and procedures for ensuring educational stability for children in foster care in Rhode Island. Doe's school placement should be guided by these policies and procedures, so that Doe will receive a free appropriate public education and experience school stability as required by ESSA.
Date: March 30, 2017
Background:
Student Doe is fourteen (14) years of age and has received special education and related services for a number of years to address his ongoing academic, behavioral, and social/emotional needs. His most recent Individualized Education Program (IEP)[1] calls for his placement at a therapeutic day school program. He resided with his family in Central Falls until January 20, 2017 at which time he was removed from his home and placed in the care and custody of DCYF by the Family Court. His caseworker testified that after his evaluation at an assessment center in Providence, Doe was placed at a group home in Warwick on February 14, 2017. On or about February 28, 2017 DCYF was notified that Bradley would no longer permit Doe to attend school until a "school department accepted responsibility for funding". Doe did not attend school again until March 7, 2017 when the Central Falls School Department agreed to accept responsibility[2] for him pending entry of an interim order.
Doe's DCYF caseworker testified that he was in the process of requesting that an educational advocate be appointed for Doe in light of recent issues arising with respect to his ongoing attendance at the Bradley School. When the Warwick School Department refused a request to pay his tuition for the Bradley School, he felt that Doe might need an advocate. Upon learning at the hearing that Doe's mother has not been involved in previous IEP meetings, he testified that he believes that the appointment of an educational advocate for Doe is necessary.[3]
The caseworker further testified that DCYF had not made a "best interest" determination or an "educational stability" plan for Doe.[4] He did, however, review Doe's IEP and determine that his educational goals were being met at the Bradley School. The caseworker was not familiar with "ESSA" -the acronym, its specific provisions with regard to educational stability or the need for DCYF to coordinate with LEAs to ensure that a foster child can remain in the school of origin if doing so is in his best interest. However, the caseworker testified that his training prepared him to develop a service plan for Doe that would keep his "life domains" as stable as possible. Since Doe had just changed his physical placement to a group home in Warwick, his other life domains should not change "if they don't have to.”[5] He further testified that the service plan developed for Doe does include an educational stability "section". The service plan is a document signed by the caseworker, the parent and the child. Since at the time the plan was signed Doe was attending the Bradley School, the document indicates the agreement of mother, child and DCYF that Doe will continue to attend this school. The caseworker acknowledged that the document was "a DCYF" document, and implied that it was not binding on "the school Department" or RIDE.[6]
Positions of the Parties:
DCYF:
The interim order requested by DCYF is based on a need for determination of school residency so that Doe may attend school. Doe's residency for school purposes is clearly governed by R.I.G.L. 16-64-1. Since February 14, 2017 when he was placed in a group home in Warwick, Doe has been "deemed to be" a Warwick resident for the purposes of enrollment and his education must be paid for in accordance with § 16-64-1.1. Under R.I.G.L. 16-64-1.1(b) since Doe's group home placement does not include the delivery of educational services, he is to be educated by the community in which his group home is located, i.e. the city of Warwick. Doe is entitled to the "same free appropriate public education provided to all other residents" of the city of Warwick.
Warwick receives an annual "per-bed" allocation of state funding to offset the costs of educating Doe and other children who are placed in group homes or other residential facilities that do not include the delivery of educational services. State law clearly determines which LEA is responsible for payment of a child's education when such child is a foster child placed in a group home. In this case Warwick bears educational and financial responsibility for Doe's education.
ESSA does not address issues of funding or administration of a child's program, but only school stability. There is no jeopardy posed to Doe's school stability by the designation of Warwick as the responsible LEA because Doe is currently in an out-ofdistrict placement which can and should be maintained by Warwick.
Central Falls Board of Trustees:
The School Department views state law and ESSA as being fully compatible in this case. State law is quite clear with respect to the responsibilities of the city or town in which a group home is located and in this case places both educational and financial responsibility with the city of Warwick. Warwick must comply with state-law requirements that it pay for Doe's education and ensure that he receives a free appropriate public education. This includes oversight and administration of his IEP. ESSA was not intended to displace provisions of state law that determine which Rhode Island community is the "responsible LEA" for students who enter our foster care system.
Furthermore, Warwick can fulfill requirements under ESSA that Doe be maintained in his school of origin by paying for his tuition at the Bradley School and administering his IEP as it is currently written and implemented. Central Falls has fulfilled all of its obligations to provide Doe with FAPE and, although this community stepped in so as to avoid continued disruption to his educationand loss of educational services the Commissioner must now designate Warwick as the responsible LEA.
Warwick School Committee:
The Warwick School Department takes the position that this case presents major issues of compliance with ESSA. RIDE and the Commissioner must decide whether specific requirements of federal law became applicable to Rhode Island children in foster care on December 10, 2016 or they did not. On February 15, 2017 RIDE's Office of Student, Community and Academic Supports (OSCAS) notified school personnel that new requirements for foster children had gone into effect. An email from David Sienko, RIDE's Director of OSCAS, indicated "RIDE is working with DCYF on a number of items that will require interagency coordination...to keep students in the care of DCYF in their school of origin." A link to the US Department of Education, "Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care" was provided as a resource for meeting ESSA requirements, pending the mapping out of interagency details and arrangements.[7]
The Warwick School Department submits that compliance with ESSA's requirements precludes the Commissioner from issuing an interim order placing responsibility for Doe with the Warwick School Department. Instead, the Commissioner must designate Central Falls as the LEA responsible for maintaining Doe in his school of origin, assuming that doing so is in his best interest. Central Falls knows this child, has developed his IEP and, most importantly, has determined that his IEP should be implemented at the Bradley School in Providence. It is this community in which this child's mother continues to reside and a reunification plan calls for his eventual return to his mother's home in Central Falls.
Viewing this case through the "lens" of ESSA, Warwick argues that the district of origin should continue to plan and provide for Doe's education, not Warwick, a community to which he has no ties. Implicitly, the district argues that state law "deeming" Doe to be a resident of Warwick for school purposes is pre-empted by more recent (and enlightened) federal law requiring that he be maintained in his school of origin by the LEA which administers his IEP. If Doe had been attending an in-district school, ESSA would require that Central Falls continue to plan and provide for his receipt of FAPE, his placement at a group home in Warwick notwithstanding. The fact that he was attending an out-of-district school when he entered foster care should not affect the designation of a responsible LEA. ESSA's presumption that a foster child remains in the school of origin simply is not consistent with a state law that immediately shifts school residency to the district in which the group home is located Warwick's counsel questions the standing of DCYF to request an interim order to maintain Doe at the Bradley School when there has yet to be a determination of whether or not doing so is in his "best interest". Essential to any determination of Doe's best interest would also be the participation of an educational advocate, if (as Central Falls has indicated) his parent has not recently been involved in his education. Both the Consent Decree entered in proceedings in federal court in 1989 and IDEA/RI regulations require that an educational advocate represent the child in all matters relating to the provision of FAPE. His DCYF caseworker testified that he believes that the appointment of an educational advocate for Doe is necessary, in light of all of the circumstances here.
As a final argument, Warwick notes that if compliance with ESSA is irrelevant and state law is controlling as to issues of educational and financial responsibility, then Warwick is under no obligation to continue to implement his IEP at the Bradley School in Providence. Without legal constraints imposed by federal law to maintain Doe in his school of origin, Warwick is free to educate Doe at a therapeutic day program of its own choosing. In fact, there is an appropriate day school program in the city of Warwick that the district has frequently utilized. It would not be appropriate for the Commissioner to rule that administration of Doe's IEP will remain with Central Falls but funding for the program of Central Falls' choice will be paid by Warwick.[8] The special education director for the Warwick School Department testified that she has applied ESSA twice since December 10, 2016. In both cases, the district retained both administrative and financial responsibility for the educational programs of two students in foster care who would have ceased to be Warwick students under state law residency rules. If federal law is not controlling such situations, then Warwick and other Rhode Island school districts should be so advised.
DECISION
The Commissioner's authority under R.I.G.L. 16-39-3.2 to issue interim protective orders pending a hearing was created to ensure "that a child receives education in accordance with applicable state and federal laws and regulations during the pendency of the matter." The facts of this case indicate that student Doe is a child with a disability whose receipt of a free appropriate public education is in jeopardy because of a dispute as to which LEA is currently responsible for his education. Testimony in this case also clearly establishes that student Doe is a child in "foster care" who is entitled to protections under federal law that would ensure educational stability for him. The specific protection afforded by ESEA as amended by ESSA is that Doe is to remain in his school of originthe Bradley Schoolunless it is determined that remaining in the school of origin is not in his best interest.[9] The record here indicates that:
- RIDE and DCYF had not yet "mapped out" interagency details and arrangements or put in place uniform statewide policies and procedures for ensuring educational stability for children in foster care, including a policy or protocol on how to make best interest determinations and factors to be considered;
- there has been no determination of Doe's "best interest";
- the appointment of an educational advocate for Doe is in process;
- there has been no educational stability plan developed for Doe and no educational stability plan has been incorporated into his service plan;
- without the constraints of an educational stability plan developed in compliance with ESSA, Doe's continued attendance at the Bradley School is not ensured;
Considering all of these facts, we find that entry of an interim protective order requiring that Doe be maintained in his school of origin (the Bradley School), pending compliance with ESSA's requirements is appropriate. Such an interim order is also necessary for him to continue to receive a free appropriate public education, uninterrupted by disputes as to LEA financial responsibility. This interim order will essentially maintain the status quo, while state policies, procedures and protocols under ESSA are developed and implemented. Federal law accords considerable flexibility to SEA's and state child welfare agencies to tailor statewide processes and procedures to unique local situations. It would be inappropriate for decisions on how to reconcile the conflict between ESSA and Chapter 16-64 to be made in this context in the first instance.
An interim protective order is issued to the Central Falls Board of Trustees to continue its responsibility for planning and providing for Doe's education at the Bradley School.
If necessary, a full hearing will be convened as soon as student Doe has received the benefit of the school stability protections to which he is entitled under ESSA. Unless this dispute is resolved by the parties, a re-determination of the responsible LEA will be made and any necessary reallocation of educational and financial responsibility for Doe and/or reimbursement to the Central Falls School Department shall be made at that time.
Footnotes
[1] This IEP was developed for him by the Bradley School on October 31, 2016, with input from his service providers and the director of Special Education for the Central Falls School Department, Denise Perron. Doe’s mother did not attend this IEP meeting. H.O. Exhibit 2.
[2] Counsel for the Central Falls School Department clearly indicated that her district took such action not because it was required to do so, but because it was the right thing to do. Central Falls does not waive any defenses and preserves any and all arguments that it is not the responsible LEA for Doe while he resides in a group home in Warwick.
[3] A 1989 Consent Decree entered in a class action lawsuit brought in federal court in Rhode Island (C.A. No. 82-0091P) against a number of defendants, including the Commissioner of Elementary and Secondary Education and the Director of the Department for Children and Their Families (now DCYF), requires, inter alia, that the DCF caseworker conduct an assessment of parental involvement in the child’s education and notify DOE (RIDE) of the need to appoint someone else to make decisions regarding the child’s education, i.e. a “surrogate parent” under R.I. Regulations § 300.519. RIDE will appoint a surrogate parent utilizing the Educational Advocate Program of the Sherlock Center at Rhode Island College.
[4] See Tr. pp.36-38. The Central Falls School Department also did not make a “best interest” determination for Doe. The Director of Special Education testified that she had not yet received training with regard to how ESSA relates to foster students, but that she was familiar with the law after reading it herself. She was uncertain whether Central Falls had the authority to make the “best interest” determination for Doe. See Tr. pp. 90, 93
[5] See Tr. pp.38-40.
[6] See Tr. pp. 56-57.
[7] See Warwick Ex. A. email from David Sienko dated February 15, 2017.
[8] Counsel refers to such a division of responsibilities as placing Warwick in the position of “writing a blank check”.
[9] ESEA section 1111(g)(1)(E)(i).
For the Commissioner,
Kathleen S. Murray
Hearing Officer
DATE: March 30, 2017
Ken Wagner, Ph.D.
Commissioner