STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN YOUTH AND FAMILIES. v. NORTH SMITHFIELD SCHOOL DEPARTMENT In re Student V. Doe DEPARTMENT OF CHILDREN YOUTH AND FAMILIES. v. In re Student J. Doe
RIDE Case No. 17-21
RULING
Held: Under ESSA’s educational stability provisions: (1) LEA which made out-of-district placement of a foster care child with a disability who was living in a group home located in the LEA remains responsible for ensuring that the child is provided with a FAPE even after she was moved to an independent living program located outside of the LEA; and (2) in a separate case, DCYF’s failure to comply with ESSA’s procedural requirements mandated that the case be remanded and that the child be enrolled in the LEA of his school of origin while DCYF completed a best interest determination in compliance with ESSA’s requirements.
Petitioner, the Rhode Island Department of Children Youth and Families (“DCYF”), has recently filed several petitions with the Commissioner of the Rhode Island Department of Elementary and Secondary Education (“RIDE”) invoking provisions of the Every Student Succeeds Act (“ESSA”) that were designed to ensure the educational stability of children in foster care (the “Educational Stability Provisions”).[1] In all of these petitions, DCYF seeks interim protective relief pursuant to RIGL § 16-39-3.2 and an interim order[2] to determine which public school district or other local educational agency (“LEA”) is responsible for ensuring that a child in foster care receives a free, appropriate public education (a “FAPE”) under the Individuals with Disabilities Education Act (the “IDEA”).
This consolidated interim decision will address two of the recent DCYF petitions concerning:
(1) Student V. Doe, a young woman with disabilities who is eighteen years of age and who has been in DCYF custody since 2005. See DCYF v. North Smithfield School Department, RIDE No. 17-21; and
(2) Student J. Doe, a young man with disabilities who is sixteen years of age and who has been in DCYF custody since May of 2016. See DCYF v. Pawtucket School Department, RIDE No. 17-22. DCYF seeks orders affirming that the North Smithfield School Department (the “NSSD”)[3] is responsible for ensuring that Student V. Doe receives a FAPE and that the Pawtucket School Department (the “PSD”) is similarly responsible with respect to Student J. Doe.
The Commissioner’s jurisdiction in both cases is provided under, inter alia, RIGL § 16-39-3.2 (quoted at note 2, supra) and the burden of proof in both cases is upon the Petitioner, DCYF.[4] Although consolidated for purposes of this decision, separate interim orders have been entered in each case and the two cases remain separate for all legal purposes. The Commissioner has entered interim, not final, orders and therefore is issuing this interim, not final, consolidated decision. However, this consolidated decision will become final thirty (30) days from the date of its issuance, i.e., on the close of business on December __, 2017, unless one of the parties requests the opportunity to supplement the record.
The confusion surrounding the state’s attempted implementation of ESSA’s Educational Stability Provisions and various issues concerning applicable state and federal guidance and federal preemption will be addressed in Section I. See infra at 4 - 15. Section II will address the petition involving Student V. Doe and will state the relevant facts, see infra at 16 - 19, articulate the position of the parties, see infra at 19 - 21, discuss the relevant legal and factual issues, see infra at 21 - 26, and state the conclusion reflected in the interim order that has been entered. See infra at 26. The case of Student J. Doe will be addressed in a similar manner in Section III. See infra at 27 - 30 (relevant facts) 30 - 31 (position of the parties); 31 - 33 (legal and factual issues); at 33 (conclusion).[5]
I. ESSA’s EDUCATIONAL STABILITY PROVISIONS
1. The Confusion Surrounding Implementation
Congress passed ESSA in December of 2015 and thereby reauthorized the Elementary and Secondary Education Act of 1965 (“ESEA”). ESSA’s Educational Stability Provisions, which became effective on December 10, 2016, were designed to operate together with the Fostering Connections to Success and Increasing Adoptions Act of 2008. Yet, there has been confusion surrounding the meaning of the Provisions and how they are to be implemented. Student V. Doe’s Educational Advocate summarized a commonly-held view when she noted that:
... before this all started to change, we had a system in Rhode Island. It wasn't a perfect system, but there was a lot of predictability to it. The districts all were very respectful of it. The advocates worked with it. DCYF workers worked with it. They used the interstate cards. Yes, sometimes there would be disagreements, but in general, there was a lot of cooperation, and kids got into school. People were very respectful about the senior year. They were very respectful about finishing up the last semester. That’s all been, like, thrown up in the air and it’s chaos and unpredictability, and people defending themselves because they don't know what's going to happen. The kids are suffering, and that's the irony. This whole thing was to promote stability for the kids because they don't graduate from high school at the rates we would like them to. It is having the opposite effect on this cohort. Transcript of the September 21, 2017 hearing before the undersigned RIDE Hearing Officer (the “V. Tr.”) at 220-221.
In most cases, the difficulties coordinating compliance has resulted from confusion stemming from the fact that:
(a) although, as will be discussed, determining a child’s “school of origin” under ESSA will in most cases effectively decide which LEA is responsible for the child, the applicable federal and state guidance refer exclusively to “schools of origin” without mentioning LEAs;
(b) the type of factors that DCYF is required to consider as part of its “best interest determination” under ESSA are suggestive of a specific educational placement. However, as will be discussed, DCYF’s role is not to make an educational placement. The purpose of DCYF’s best interest determination is to test the validity of ESSA’s school of origin presumption. It is then the responsible LEA, not DCYF, which actually places the child; and
(c) in most cases where ESSA’s school of origin presumption remains in effect, it is impossible to harmonize the relevant federal and state guidance with certain provisions of Title 16, Chapter 64 of the Rhode Island General Laws, which concern the residence of children for school purposes, and as a result, in most such cases, Chapter 64 is federally preempted.
2. The Federal and State Guidance and Federal Preemption
ESSA makes clear that decisions concerning an LEA’s responsibility for a child’s education can no longer be made exclusively, or even primarily, with reference to where the child, or the child’s parents, reside. Rather, the focus has shifted to the child’s “school of origin.”[6]
The Educational Stability Provisions have been the subject of: (i) non-regulatory guidance from the U.S. Departments of Education and Health. See Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care (June 23, 2016) (“Federal Guidance”);[7] as well as (ii) limited, preliminary guidance from RIDE and DCYF. See Ensuring Educational Stability for Children in Foster Care (Non Regulatory Guidance Document, 2017) (“State Guidance”).[8] In addition, they are the subject of a July, 2017 Memorandum of Agreement between RIDE and DCYF (the “RIDE/DCYF MOA”). See V. DCYF Ex. 6, I.D. only.
“School of origin” is defined in the Guidance as simply “the school in which a child is enrolled at the time of placement in foster care,” or alternatively, “if a child’s foster care placement changes... the school in which the child is enrolled at the time of the placement change.” See Federal Guidance at 11, Answer to Question 10, citing ESEA sections 1111(g)(1)(E)(i); State Guidance at 2.[9] And under ESSA there is a presumption that foster this subparagraph, and such point of contact shall not be the State's Coordinator for Education of Homeless Children and Youths under section 722(d)(3) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11432(d)(3)). ESEA § 1111(g)(1)(E)(i) – (iii).
children should remain in their school of origin, “unless it is determined to be in their best interest to change schools.” State Guidance at 2; see also Federal Guidance at 6, 7 and 11, FAQ
Intro. and Answer to Questions 3 and 10. This “best interest determination” is to be made by DCYF, in consultation with involved LEAs and other interested parties, see Federal Guidance at
14, Answer to Question 18; State Guidance at 2, and DCYF should consider, inter alia, the following factors:
- Preferences of the child;
- Preferences of the child’s parent(s) or educational decision maker;
- The child's attachment to the school, including meaningful relationships with staff ad peers;
- Placement of the child's siblings;
- Influence of the school climate on the child, including safety;
- The availability and quality of the services in the school to meet the child's educational and socioemotional needs;
- History of school transfers and how they have impacted the child;
- How the length of the commute would impact the child, based on the child's developmental stage;
- Whether the child is a student with a disability under the IDEA who is receiving special education and related services or a student with a disability under Section 504 who is receiving special education or related services and, if so, the availability of those services in a school other than the school of origin; and
- Whether the child is an EL and is receiving language services, and, if so, the availability of those services in a school other than the school of origin, consistent with Title VI and the EEOA.
Federal Guidance at 11-12, Answer to Question 12; State Guidance at 2-3.
not address local financial responsibility but rather describes a homeless student’s right to attend a particular school, the term is defined as either:
(1) the school or pre-school that the child attended: (a) when permanently housed, or (b) when last enrolled; or
(2) when the child completes the final grade level served by the school of origin, “the designated receiving school at the next grade level for all feeder schools.” 42 U.S.C. § 11432(g)(3)(I) (as amended by ESSA § 9102(5)). And the state Regulations Re Education of Homeless Children and Youth define the term as “the school that the child or youth attended when permanently housed or the school in which the child or youth was last enrolled.” Id. at § L-7-2.
The Guidance places a heavy emphasis upon collaboration,[10] and the very nature of many of the factors to be considered by DCYF requires meaningful consultation with various parties.[11] Thus, in making the best interest determination, DCYF should collaborate with LEAs, children, parents and/or legal guardians, educational advocates, and if necessary, with RIDE. See Federal Guidance at 11-13, Answer to Questions 11 and 14; State Guidance at 2.
The Federal Guidance also provides that DCYF must include an educational stability plan as “a written part of the child’s case record,” Federal Guidance at 8, Answer to Question 8, which must be “jointly developed” with the child’s parents, legal guardian or educational advocate, id., “no later than sixty (60) days after a child’s removal from the home.” Id. at 8, Answer to Question 5. Also, the plan must contain assurances, effective each time there is a change in residential placement, that:
(a) the appropriateness of the current educational setting and the proximity to the school in which the child was enrolled at the time of placement [was taken into account]; and
(b) the child welfare agency has coordinated with the LEAs to ensure the child can remain in that school, or if remaining in that school is not in the child’s best interest, an assurance that the child will be enrolled immediately in a new school and that the new school obtains relevant academic and other records. Id. Although the issue is not addressed in the State Guidance, the Federal Guidance posits that such a written educational stability plan should be included in the case file of every child in foster care, whether or not he or she has been moved after December 10, 2016, and provides that the plan should be updated every six months. See id. at 8, Answer to Question 5.
ESSA’s emphasis on the school of origin does not, however, address the allocation of financial and other educational responsibility between or among LEAs. Both the Federal and State Guidance refer to a “school of origin” without reference to an LEA, and cite factors relevant to a school, not LEA, of origin. Under ESSA, DCYF must evaluate a specific placement for a limited purpose. It is not charged with making the actual placement decision, which is the LEA’s responsibility. Conflating ESSA’s best interest determination with the question of an LEA’s educational and financial responsibility for a child only creates confusion. The question to be answered by DCYF under ESSA is not “What LEA is financially or otherwise responsible for a child’s education?” or “Where should the child ultimately be placed?” But rather, “Has ESSA’s presumption that it is in the child’s best interest to remain in the school he or she is currently attending been rebutted by facts suggesting that it is not in the child’s immediate best interest to continue attending that school?”
By contrast, state law provides that foster children are: deemed residents of the city or town where the group home, child caring facility, or foster home is located for the purposes of enrollment, and this city or town shall be reimbursed or the child’s education shall be paid for in accordance with § 16-64-1.1 RIGL § 16-64-1. And § 16-64-1.1(a) provides that the city or town where the child resides “shall pay the cost of the education of the child during the time the child is in foster care in the city or town.” Id.[12] In addition, there is no reference to anything like ESSA’s best interest determinations under state law. It thus appears that ESSA’s focus upon a child’s school of origin can on occasion conflict with the state law focus upon a child’s residency for school purposes.[13]
For example, if a child with special needs in foster care were to be moved from a foster family in Warwick to a group home located in Providence, ESSA would mandate that the child remain enrolled in his or her school of origin in Warwick (at least in the absence of a best interest determination by DCYF to the contrary). By contrast, RIGL § 16-64-1.3(a) makes clear that the city or town where the group home is located, in this example, Providence, “shall be responsible for the free appropriate public education of any child residing in those placements, including all procedural safeguards, evaluation, and instruction...” Id.; see also§ 16-64-1.1(a) (quoted supra). Attempting to harmonize ESSA with Chapter 64 would result in making Providence financially and otherwise responsible for a child who was placed pursuant to the dictates of an IEP created in Warwick and who would be attending school in Warwick. Such a bifurcation of responsibility would only lead to more confusion and less educational stability.
In fact, the Supremacy Clause of the United States Constitution, Article VI, clause 2, preempts or invalidates state law that interferes or conflicts with any federal law. The federal preemption doctrine encompasses three types of preemption: (1) express preemption, (2) field preemption, and (3) conflict preemption. See Verizon New England Inc. v. Rhode Island Public Utilities Com’n, 822 A.2d 187, 193 (R.I. 2003), citing Shaw v. Delta Airlines, Inc., 463 U.S. 85, under chapter 24 of this title, for any period during which a child is residing in the city or town”). DCYF is responsible for the entire cost of a child’s education if the child is placed in a facility that is: (a) operated by the state of Rhode Island, or has a contract with DCYF to fund a pre-determined number of placements; (b) is state licensed; and (c) “operates an approved, on-grounds educational program, whether or not the child attends the on-grounds program.” § 16-64-1.2(d).
95–96 (1983). And as the Court recognized in Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000), preemption can exist where:
‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). [And] what is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects * * *. Id. And in certain situations (like in the example cited above involving Providence and Warwick), it is clear that applying state residency rules rather than rules premised upon ESSA’s school of origin presumption would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives” of ESSA.[14]
If ESSA’s goal of ensuring educational stability is to be realized, its best interest presumption requires the corollary presumption that the LEA that is educationally responsible (financially and otherwise) for the child in his or her school of origin remains responsible after a change in residential placement. The professionals who have been working with a child – or in many cases the team that has designed the child’s individualized education program (“IEP”) – should not change simply because the child has moved. ESSA’s goals of continuity and stability would not be furthered by requiring professionals in the LEA of the child’s new residence, who might not be fully acquainted with the resources available in the LEA of her school of origin, to make placement decisions, nor would stability be promoted by separating educational and financial responsibility.
Thus, in cases where ESSA’s school of origin presumption is not rebutted, the LEA which has jurisdiction over the school of origin – i.e., the school where the child is enrolled at the time of the most recent change in residential placement[15] – remains responsible for the child’s education regardless of where the child (or the child’s parents) ends up residing or where responsibility would lie under Chapter 64. And where there has been an out-of-district placement, it is the LEA which made the out-of-district placement in effect at the time of the change of residence that is responsible.
On the other hand, when ESSA’s school of origin presumption is rebutted by a best interest determination by DCYF concluding that it would not be in the child’s best interest to attend his or her school of origin, there would be no reason, as a matter of law or policy, not to apply the state residency rules under Chapter 64.
If transportation is an issue, the LEA deemed financially and otherwise responsible for the child’s education under the above analysis also would be responsible for ensuring transportation using whatever resources are provided under relevant state law. Also, it should be noted that both the Federal and State Guidance make clear that “the cost of school transportation should not be a factor in determining the best interest of the child.” Federal Guidance at 8, 12 Answer to Questions 5 and 12; State Guidance at 3.[16]
In the event that an LEA claims that is it is not responsible for a child – whether because it disagrees with DCYF’s best interest determination or for some other reason – the LEA nonetheless must comply with DCYF’s best interest determination and enroll the child (and/or facilitate the out-of-district placement) forthwith, and only after doing so should it be able to pursue the relief to which it believes it is entitled before the Commissioner under RIGL § 16-39-1[17] or when appropriate, § 16-39-3.2. See note 2, supra.
Both the Federal and State Guidance provide that in the event of a disagreement concerning the best interest determination, it is DCYF which is to make the final determination. See Federal Guidance at 14, Answer to Question 18; State Guidance at 3. As noted in the Federal Guidance:
if there is disagreement regarding school placement for a child in foster care, the child welfare agency should be considered the final decision maker in making the best interest determination (unless State law or policy dictates otherwise). The child welfare agency is uniquely positioned to assess vital non-educational factors such as safety, sibling placements, the child’s permanency goal, and the other components of the case plan. The child welfare agency also has the authority, capacity, and responsibility to collaborate with and gain information from multiple parties, including parents, children, schools, and the court in making these decisions. Federal Guidance at 14, Answer to Question 18. Thus, although, as noted, the Commissioner has broad jurisdiction in all “disputes... arising under any law relating to schools or education,” RIGL § 16-39-1 (quoted at note 17, supra and see also note 2, supra, quoting RIGL § 16-39-3.2), the scope of the Commissioner’s review of challenges to such determinations should, in the usual case, be confined to a review of whether DCYF’s determination was clearly erroneous and/or whether DCYF failed to comply with applicable procedure.
The timing of DCYF’s best interest determination is significant and collaboration should begin as soon as a change in residential placement is contemplated. As noted in the Federal Guidance, DCYF should make its best interest determination “as quickly as possible in order to prevent educational discontinuity for the child.” Federal Guidance at 13, Answer to Question 15 (citing ESEA at § 1111(g)(1)( E)(i) (quoted at note 6, supra). Moreover, “[i]f it is in the child’s best interest to change schools, the new LEA must immediately enroll the child in the new school regardless of whether the student can produce the documents normally required for school enrollment.” State Guidance at 3.[18]
The fact that DCYF, for whatever reason, has not made the required best interest determination means that ESSA’s school of origin presumption remains in effect and the school of origin remains responsible for the child. And whether or not the best interest determination has been completed – and regardless of the relative merits of an LEA’s arguments concerning its responsibility for a child – DCYF should never have to seek an interim order from the Commissioner in order for a child to be enrolled in school. The LEA where the school of origin is located (or which made the out-of-district placement) should enroll the child and at the same time demand that DCYF fulfill its obligations under ESSA and make a best interest determination. As noted in the Federal Guidance, “[t]o the extent feasible and appropriate, the LEA must ensure that a child remains in his or her school of origin while this determination is being made.” Federal Guidance, Answer to Questions 15, 20 at 13, 15. An LEA’s failure to promptly request a best interest determination will effectively make it the school of origin and relieve DCYF of any obligation (or authority) to make such a determination under ESSA until the next change of placement.[19]
In conclusion, it would be entirely unrealistic to expect that the state could replace a decision-making process which defines an LEA’s responsibility for children in foster care based upon a statutory determination of a child’s residence for school purposes with one that hinges upon a child’s school of origin without difficulty. However, these difficulties can be surmounted in most cases if DYCF and LEAs come to a mutual understanding as to the nature of their respective roles in implementing ESSA and recognize that:
(1) the best interest determination mandated by ESSA envisions a collaborative process which necessitates meaningful communication between DCYF, involved (or potentially involved) LEAs, and a child’s educational advocate and/or parents or guardians, prior to any decision being made concerning a child’s best interests;
(2) in most cases where the school of origin is located in a different community from the child’s residence, the residency rules under Title 16, Chapter 64 of the Rhode Island General Laws will be preempted as long as ESSA’s school of origin presumption is not rebutted; and
(3) although responsibility in these cases has for years been based upon a statutory definition of a child’s residency for school purposes, doing so based upon a child’s school of origin is now dictated by federal law, will better ensure the educational stability of children in foster care, and is no more likely to result in unfairness.
consider adopting policies that allow a child that exited foster care during the school year to continue in the school of origin through at least the end of the academic year, if appropriate.” Id., Answer Question 11 at 11.
II. DCYF v. NSSD
(Student V. Doe)
A. Facts
The following facts were deduced from testimony offered at a hearing before the undersigned RIDE Hearing Officer on September 21, 2017. Counsel for DCYF, the NSSC, as well as the Pawtucket and Newport School Departments (the “PSD” and the “NSD,” respectively) were present at the hearing, and testimony was elicited from Student V. Doe’s Educational Advocate, a case work supervisor at DCYF, DCYF’s Educational Service Coordinator, the Pupil Personnel Services Director at NSSC, and the Assistant Superintendent of Schools for the PSC.[20]
1. At the time that Student V. Doe was placed in DCYF custody in 2005, she and her parents resided in Central Falls and she was enrolled in the Central Falls School District (the “CFSD”). See V. PSD Ex. 1.
2. Subsequently, her mother was deported and the whereabouts of her father, who was incarcerated for a period, became unknown. (V. Tr. at 15). The parental rights of both parents have been terminated. (Id. at 188).
3. Due to a variety of issues, Student V. Doe changed residences no less than a dozen times while in DCYF custody, residing with numerous foster families and in a variety of shelters and group homes located throughout the state. (Id. at 52-54, 58-62).
4. The number of schools attended by Student V. Doe while in DCYF custody is almost as numerous as the number of her residences. In addition to the NSSC, Student V. Doe has at one time or another been enrolled as a student in the CFSD, the PPSD, the PSD, the NSD, the Cranston School District (the “CSD”), the East Providence School District (the “EPSD”), as well as in the school districts of Woonsocket, Burrillville and Lincoln. See V. PSD Ex. 1.
5. In December of 2015, Student V. Doe was enrolled in the Bradley School in Providence (“Bradley”). (V. Tr. at 128). She was then residing in a group home in East Providence (Id. at 10, 129) and enrolled as a student in the EPSD. (Id. at 52).
6. Sometime in March of 2016, she moved to another group home in Providence and in April of 2016, was enrolled as a student in the PPSD. See V. PSD Ex. 1 (V. Tr. at 192).
7. In August of 2016, she was moved into another group home in Newport (V. Tr. at 10) and that September, the NSC enrolled her in a therapeutic classroom at Rogers High School. (Id. at 14, 97, 129-30).
8. However, she ran away from her home in Newport in late March of 2017 and stopped attending school. (Id. at 179). She was located by DCYF in April of 2017 and placed at the Sakonnet House in North Smithfield, a “temporary” group home with approximately twenty beds which did not provide educational services. (Id. at 180).
9. DCYF did not identify Student V. Doe’s “school of origin” or perform the “best interest determination” in connection with this change in placement (id. at 181) even though required to do so by ESSA’s Educational Stability Provisions (which had become effective some four (4) months earlier). See supra at 4.
10. The NSSC, in consultation with the NSC, updated her IEP and in May of 2017 enrolled her in a program taught by Bradley in a classroom at North Smithfield High School. (Id. at 14, 23).
11. Student V. Doe had several altercations with fellow students at the High School and so the NSSD made the decision to place her in a more structured environment at Bradley in Providence. (Id. at 24, 98-99). She thus began attending Bradley in Providence in May of 2017 as a junior, and she completed the school year with sufficient credits to be able to graduate from high school in June of 2018 (assuming she is able to successfully complete her senior year). (Id. at 105, 199, 127).
12. At an IEP meeting conducted by the NSSC on June 19, 2017, Student V. Doe advised school officials that DCYF was about to move her to a foster family in Cranston and that she would be attending a program run by the CSD, and she was then dis-enrolled from the NSSD. (Id. at 94).
13. In fact, Student V. Doe’s anticipated placement in Cranston did not work out. Nonetheless, in July of 2017, DCYF moved her out of the Sakonnet House in North Smithfield and into an independent living program (with no educational services) located in Pawtucket. (Id. at 54).
14. On July 26 and 27, 2017, DCYF’s Educational Coordinator sent e-mails to Student V. Doe’s Educational Advocate informing her that the CFSD was Student V. Doe’s “school of origin” and advising the Advocate to “ask [the CFSD] to keep her in an out-of-district placement, Bradley School.” See V. NSSD Ex. 1.
15. Subsequently, on or about August 31, 2017, the NSSD was advised by DCYF that it (not the CFSD) was the “school district of origin” and that it was responsible for ensuring that Student V. Doe was provided with a FAPE, and thus was responsible for paying her tuition and enrolling her at Bradley. According to DCYF’s Educational Coordinator, she simply was mistaken in her July e-mails when she advised Student V. Doe’s Educational Advocate that CFSD was the school district of origin. (V. Tr. at 151).
16. There was and is agreement among DCYF, the NSSD, Student V. Doe and her Educational Advocate that it would be in Student V. Doe’s best interest to enroll in Bradley for her senior year, and the PSD does not dispute the conclusion. (V. Tr. at 61, 164).
17. According to the one-page record kept by DCYF, it conducted a “best interest determination” in accordance with ESSA and “determined that it remains in [Student V. Doe’s] best interest to remain in his [sic] district of origin, North Smithfield School Department.” See attachment to V. DCYF Ex 1.
18. However, the NSSD informed DCYF that it did not believe that it should remain financially and otherwise responsible for Student V. Doe’s FAPE following her move to Pawtucket simply due to her three-month residence in North Smithfield at the Sakonnet House and/or the fact that it had assumed responsibility for ensuring that she received a FAPE during this short period.
19. The NSSD thus refused to pay to enroll Student V. Doe at Bradley this Fall, which prevented her enrollment.
20. On September 29, 2017, an interim order was entered in the case mandating that Student V. Doe be enrolled at Bradley “forthwith” and that she remain enrolled during the pendency of the proceedings.
B. The Positions of the Parties
1. DCYF’s Argument
In support of its petition seeking an interim order mandating that the NSSD immediately enroll Student V. Doe in Bradley, DCYF argued that:
(a) the relevant parties all agree that it would be in Student V. Doe’s best interest to enroll her in Bradley for her senior year;
(b) DCYF found that it was in Student V. Doe’s best interest to “remain in his [sic] school district of origin, North Smithfield School Department.” See one-page attachment to DCYF’s Petition (V. DCYF Ex. 1 at 4). Thus, ESSA and the applicable Guidance make clear that
(c) the NSSD remains responsible for ensuring that Student V. Doe receives a FAPE even though she moved to Pawtucket, and thus the NSSD should enroll her at Bradley immediately.
2. The School Departments’ Response
The NSSD submitted a written motion to dismiss the Petition as a matter of law, and the PSD made a similar motion orally. Both argued that:
(a) since relevant state guidance defines “school of origin” as “the school in which a child is enrolled at the time of placement in foster care,” see Federal Guidance at 11, Answer to Question 10 and State Guidance at 2; and
(b) since Student V. Doe was enrolled in the CFSD when she was originally placed in foster care in 2005; it follows that
(c) the CFSD is the school of origin under ESSA and thus it, not the NSSD, is responsible for ensuring that Student V. Doe receives a FAPE, and since the CFSD was not joined as a necessary party, the Petition must be dismissed. The NSSD and the PSD also argued that if a three-month stay in a temporary group home can result in the long-term responsibility for a student’s FAPE, LEAs will be less likely to make expensive out-of-district placements and municipalities will become less welcoming to group homes. In addition, both argued that DCYF did not conduct adequate “best interest determinations” with respect to several of Student V. Doe’s changes in residential placement as required by ESSA.
In addition, the NSSD argued that the Petition should be dismissed because:
(a) under ESSA, “the school of origin is the school, not the LEA, in which the child is enrolled...” See NSSD Motion at 1-2;
(b) there was no evidence that designating the NSSD as responsible for Student V. Doe’s FAPE would be more likely to ensure her educational stability. See id. at 2; and
(c) it would be inequitable to make the NSSD responsible for ensuring Student V. Doe’s FAPE, and thus the Commissioner should designate the school district of her “original city or town of residence”, i.e., the CFSD, “as having continuing responsibility for [her] education” under RIGL § 16-64-5. The PSD also claimed that any suggestion in the applicable federal guidance that the definition of “school of origin” was meant to refer to the most recent, as opposed to the initial, foster care placement, became moot once Donald J. Trump was elected President since, it argued that all existing federal guidance is automatically repealed when a new President is elected.
Finally, the NSD argued that its limited involvement precludes finding it responsible for Student V. Doe’s FAPE under either ESSA or under Title 16, Chapter 64 of the Rhode Island General Laws.
C. Discussion
DCYF made a prima facie case that the NSSD continues to be responsible for ensuring that Student V. Doe receives a FAPE, and thus should be required to enroll her at Bradley, by introducing evidence that:
(1) Bradley was the school of origin, i.e., the last school in which Student V. Doe was enrolled prior to the most recent change of residential placement, i.e., her move in July of 2017 from the Sakonnet House in North Smithfield to an independent living program in Pawtucket;
(2) Student V. Doe was placed at Bradley by the NSSD; and
(3) all relevant parties agreed that it would be in Student V. Doe’s best interest to enroll her in Bradley for her senior year.
The argument made by both the NSSD and the PSD that the definition of “school of origin” in the State and Federal Guidance refers exclusively to the initial placement in foster care rather than the most recent change in placement is directly contradicted by the plain text of the Federal Guidance, which, as noted, provides that “if a child’s foster care placement changes, the school of origin would then be considered the school in which the child is enrolled at the time of the placement change.” See Federal Guidance at 11, Answer to Question 10, citing ESEA sections 1111(g)(1)(E)(i). The point is further illustrated by the following example provided in the Federal Guidance:
... a student enters foster care and changes residences, meaning that she now lives ten miles away from her school of origin (school A) and the closest school is school B. The child welfare agency and LEA determine that it is in this student’s best interest to attend school B. One year later, this same student changes foster care placement (and therefore changes residences). She now lives five miles away from the school she is currently enrolled in (school B) and the closest school is school C. For the purposes of determining which school is in this child’s best interest, the child welfare agency and LEA should now consider school B (the school she is currently enrolled in) as the school of origin. Id. at 11, Answer to Question 10. Thus, since the NSSD placed Student V. Doe in the school of origin (Bradley) and since the CFSD has not had any recent involvement with her, the CFSD is not a necessary party.
In addition, the argument made by both the NSSD and the PSD that implementing ESSA in the manner suggested would discourage LEAs from making expensive out-of-district placements and would render municipalities less welcoming to group homes does not withstand scrutiny. In fact, the best interest determination required by ESSA is designed to be made before the new LEA does anything with respect to placement other than facilitating the child’s continued attendance in his or her school of origin. And more often than not, the school of origin approach mandated by ESSA will benefit municipalities that have a temporary group home within their borders since there now is a presumption which will result in keeping financial and other educational responsibility with the LEA where the school of origin is located (or with the LEA who made the relevant out-of-district placement, as the case may be), rather than automatically imposing such responsibility upon the LEA where a temporary group home happens to be located.
Here, however, the analysis is complicated by the fact that DCYF failed to determine Student V. Doe’s school of origin or perform the best interest determination required by ESSA in connection with Student V. Doe’s next-to-last move, i.e., her move in April of 2017 from the group home in Newport to the Sakonnet House in North Smithfield, see Section II(A), supra, ¶¶ 7-9 at 17;[21] and it is theoretically possible that if DCYF had done so, NSSD might not now be responsible. However, it would be unduly speculative to now attempt a retrospective best interest determination, and then try to guess as to its impact, and it would be the extremely rare case where such retrospective analysis would be appropriate. This underlines the need for collaboration between LEAs and DCYF as soon as there has been a change in residential placement.
In addition, the NSSD’s arguments that designating it as the responsible LEA was inequitable and that it would not ensure Student V. Doe’s educational stability, are unpersuasive. Although the school of origin approach mandated by ESSA could theoretically result in what could be perceived as unfairness to an LEA, the same is equally true of the prior residency-based system. And here, there was no unfairness. The NSSD was the LEA that last placed Student V. Doe at Bradley, and she resided in North Smithfield at the time of this placement. Contrary to the argument of NSSD and PSD, it makes little sense, and is hardly more equitable, to impose the responsibility for ensuring her a FAPE upon the CFSD simply because Student V. Doe happened to have been enrolled in the CFSD over a decade ago when she was initially placed into foster care.
Both the NSSD and the PSD also claim that DCYF failed to properly perform the best interest determination mandated by ESSA with respect to Student V. Doe’s most recent move in July of 2017 from North Smithfield to Pawtucket. See Section II(A), supra, ¶ 13 at 18. Although, as noted, the scope of the Commissioner’s review of such determinations is in most cases limited, see supra at 13, the claims of NSSD and PSD here concern procedure as well as substance, and are not without merit.
Indeed, it appears that DCYF was confused about its role. Indeed, at the outset of the hearing DCYF’s counsel argued that “DCYF was not able to conduct a best interest determination because we couldn’t speak to the school of origin as required by DCYF policy.” (Tr. at 19). Yet later, DCYF’s Educational Services Coordinator testified that DYCF did make the determination, considered all necessary factors and concluded that it was in Student V. Doe’s “best interest to remain in North Smithfield.” (Tr. at 162-164).
Moreover, although the Guidance ensures that DCYF is afforded a significant degree of flexibility with respect to how it makes the required determination by avoiding any hard and fast rules,[22] here, the lack of any writing to evidence the existence of the mandated educational stability plan evidences that DCYF was not in procedural compliance. In addition, it does not appear that there was any communication between DCYF, the NSSD and/or the Educational Advocate which was any more meaningful than the one line in Student V. Doe’s case plan announcing that it had “determined that it remains in [Student V. Doe’s] best interest to remain in his [sic] district of origin, North Smithfield School Department.” See attachment to V. DCYF Ex 1. Such lack of communication does little to dispel the mutual confusion concerning ESSA shared by DCYF and many LEAs and makes disagreement and discord much more likely.[23]
All that being said, here, the procedural adequacy of DCYF’s best interest determination is moot inasmuch as the parties were in agreement that it was in Student V. Doe’s best interest to enroll in Bradley for her senior year, an agreement which suggests an awareness that under Rhode Island law, a student about to enter his or her senior year of high school “shall be allowed to complete his or her senior year in his or her original city or town of residence.” RIGL § 16- 64-8.
Little time need be spent addressing:
(1) the NSSD’s argument that it is not a “school” and therefore cannot be a “school of origin” and thus should not be assigned responsibility for ensuring Student V. Doe a FAPE;
(2) NSSD’s suggestion that the Commissioner should determine that the CFSD is responsible under RIGL § 16-64-5; or
(3) the PSD’s argument that the election of President Trump effectively rescinded the Federal Guidance. In fact:
(1) the NSSD’s overly literal interpretation of ESSA’s school of origin concept would defeat the entire purpose of the Educational Stability Provisions, which is to ensure stability by affixing responsibility for a child’s education based upon their school of origin;
(2) there is nothing inequitable about making the NSSC responsible, as has been noted, and the temporary, two-month period of LEA responsibility contemplated under § 16-64-5 would serve no useful purpose;[24] and
(3) thankfully, there is absolutely no legal support for PSD’s novel claim that all non-regulatory guidance from federal agencies is somehow automatically repealed every time a new president is elected.[25] Finally, counsel for both the NSSD and the PSD argue that while this and similar disputes are being adjudicated, it is DCYF, not an LEA, which is responsible for ensuring a FAPE which, in this case, would involve paying the tuition necessary to enroll Student V. Doe in Bradley. However, the LEA which placed the child in the school of origin (here, the NSSD), not DCYF, is responsible for ensuring that the child attends school during the pendency of such disputes, as has been discussed. See supra at 13-14. And there is nothing in the text of ESSA, the applicable Guidance or the objectives of the Educational Stability Provisions which suggest that this rule should be altered and responsibility shifted to DCYF. Doing so would make it more, not less, likely that children will experience disruption in school attendance.
D. Conclusion
None of the arguments proffered by the NSSD or the PSD justify the dismissal of DCYF’s Petition as a matter of law, nor effectively rebut the conclusion that the NSSD – the LEA which placed Student V. Doe in her school of origin, i.e., Bradley – remains responsible for ensuring Student F. Doe a FAPE under ESSA.
[i]n cases where the director of a Rhode Island state agency considers it likely that a child under his or her care and control will be subject to a short term placement or series of short term placements, the director may petition the commissioner of elementary and secondary education to designate the child's original city or town of residence as having continuing responsibility for the child's education. This designation shall be effective for period not greater than two (2) months unless an extension is granted by the commissioner. Id.
III. DCYF v. PSD
(Student J. Doe)
The following facts were deduced from testimony offered at a hearing before the undersigned RIDE Hearing Officer on September 28 and October 2, 2017. Counsel for DCYF, the PSD and the PPSD were present at the hearing, and testimony was elicited from Student J. Doe’s social worker at DCYF, DCYF’s Administrator, Student J. Doe’s Educational Advocate, DCYF’s Educational Service Coordinator and the Assistant Superintendent of Schools for the PSC.
A. Facts
1. Student J. Doe, who is sixteen years of age, arrived in this country from the Dominican Republic in November of 2014 and initially resided with his mother in Providence. See Transcript of the September 28, 2017 hearing before the undersigned RIDE Hearing Officer (the “J. Tr. I”) at 34. Along with his mother, Student J. Doe also has a sister, an aunt and other unidentified family friends who reside in Providence. (Id. at 55-57).
2. He was enrolled in the PPSD at the Governor DelSesto Middle School on November 25, 2014, and then at the West Broadway Middle School on June 1, 2015, although he never actually attended either school. See J PSD Ex. 1 (J. Tr. I at 12); Transcript of the October 2, 2017 hearing before the undersigned RIDE Hearing Officer (“J. Tr. II”) at 163.
3. Student J. Doe was placed in the care of DCYF in June of 2015, after he allegedly “almost attacked [his mother’s] landlord with a knife” and his mother reported that she “could not manage his behavior.” (J. Tr. I at 15).
4. DCYF placed him at Bradley Hospital on June 6, 2015, and he remained at the Hospital for almost a year, during which time the PPSD provided tutoring in Spanish for four hours per week. See J. DCYF Ex. 1 at 2 (J. Tr. I at 34). An IEP, which was prepared on his behalf by a team from the West Broadway Middle School, became effective on March 24, 2016, (J. Tr. I at 61), and expired when it was not renewed by March 24, 2017. (J. Tr. II at 135).
5. Upon his discharge from Bradley Hospital on May 12, 2016, DCYF placed Student J. Doe at the “Turning the Corner” group home in Warwick. See J. DCYF Ex. 1 at 2.[26] According to Student J. Doe’s DCYF social worker, employees from the Warwick group home informed him that they enrolled Student J. in the Warwick School District, (J. Tr. I at 21-22), although RIDE’s enrollment history does not reflect that he actually was enrolled. See J. PSD Ex. 1.
6. In any event, there is no record that he ever attended school in Warwick, and in July of 2016 was sent to the Rhode Island Training School after he allegedly “became aggressive ... took a knife from the office [at the Warwick group home]... and attempted to charge at a peer.” (J. Tr. I at 43). Although the police were called and he was arraigned, all criminal charges were dropped after the results of two competency evaluations indicated that he was not competent to stand trial. (Id. at 44-45, 60).
7. Student J. Doe did receive some instruction at the Training School and when he was released on May 26, 2017, DCYF placed him in an independent living program at a Blackstone Valley Youth & Family group home in Pawtucket, and the Family Court ordered the appointment of an educational advocate. (Id. at 45-46, 65).
8. On June 7, 2017, employees of Student J. Doe’s group home in Pawtucket attempted to enroll him in the PSD, but were advised that he should enroll in the PPSD since it was the location of his school of origin under ESSA. (J. Tr. II at 183, 192-93).
9. On August 15, 2017, Student J. Doe met with his DCYF social worker and Educational Advocate and after conferring with his mother by phone, the Educational Advocate concluded that it was in his best interest to attend school in Pawtucket and that he should enroll in the PSD. (Id. at 125, 151).
10. According to the Educational Advocate, the factors supporting her conclusion were, in her words, that PSD was:
[l]ocal. His housemates were there – would be attending school in the district. Sports, he was motivated by sports, basketball. He wanted to play for a local team. (Id. at 151).
11. However, the Educational Advocate admitted that she was not aware that Student
J. Doe had twice attempted to attack someone with a knife and twice been deemed not competent to stand trial. (Id. at 143).
12. According to DCYF’s Educational Advocate, DCYF determined “sometime in August, late August” that it would not be in Student J. Doe’s best interest to enroll in the LEA of his school of origin after speaking with his Educational Advocate, (id. at 209), although it is unclear whether DCYF assumed that enrollment in the PSD would result in Student J. Doe attending Tolman High School in Pawtucket or be placed at the Rhode Island Alternative Academy, which is a private facility. (J. Tr. I at 58).
13. PSD was informed of DCYF’s best interest determination on September 7, 2017. (J. Tr. II at 192).
14. DCYF then filed the Petition with the Commissioner seeking an order that Student J. Doe be enrolled in the PSD. (Id. at 196-97).
15. On October 10, 2017, an interim order was entered in the case remanding it so that a proper “best interest determination” could be performed by DCYF, and also mandating that in the interim and during the course of these proceedings, PPSD should do whatever was necessary to ensure that Student J. Doe was provided with a FAPE.
B. The Positions of the Parties
1. DCYF’s Argument
In support of its Petition seeking an interim order mandating that the PSD immediately enroll Student J. Doe, DCYF argued that:
(a) Student J. Doe’s school of origin under ESSA was the West Broadway Middle School, which prepared his (now expired) IEP and which is located in the PPSD; however
(b) DCYF concluded that it would not be in Student J. Doe’s best interest to enroll in the PPSD, but rather, to enroll in the PSD, based upon the recommendation of his Educational Advocate; and thus
(c) Student J. Doe should be enrolled in the PSD forthwith.
2. The School Departments’ Response
The PPSD, while emphasizing that its involvement with Student J. Doe was dated and that he never actually attended school in the PPSD, essentially adopted DCYF’s arguments and advocated for Student J. Doe’s enrollment in the PSD.
The PSD, on the other hand, argued that at the time that Student J. Doe attempted to enroll in the PSD in June of 2017, DCYF had not conducted any best interest determination, and thus ESSA’s school of origin presumption should have been given effect and Student J. Doe should have been enrolled in the PPSD.
In addition, the PSD argued that DCYF’s determination in August of 2017 that it was not in Student J. Doe’s best interest to enroll in the LEA of his school of origin was flawed because, inter alia, DCYF failed to consider that:
(a) Student J. Doe’s family and friends resided in Providence and that one of the primary reasons cited in support of DCYF’s determination – his ability to play organized basketball – could have been accomplished whether he was enrolled in the PPSD or the PSD;
(b) the PPSD was the only LEA that had any contact with Student J. Doe and provided tutoring while he was in Bradley Hospital and had prepared his IEP, yet there was no evidence that DCYF had meaningful discussions with anyone at PPSD in connection with its best interest determination;
(c) his Educational Advocate was not aware that Student J. Doe had twice attempted to attack someone with a knife and twice been deemed not competent to stand trial; and[27]
(d) Student J. Doe was in need of psychiatric services which would not be available at the PSD’s Tolman High School and could have just as easily been provided by the PPSD, whether at the Rhode Island Alternative Academy or at some other location.[28]
C. Discussion
PSD’s argument is centered upon the adequacy of DCYF’s best interest determination and thus squarely raises the proper scope of the Commissioner’s review of such determinations. As noted, DCYF is the “final decision-maker” in making best interest determinations under ESSA, see Federal Guidance at 14, Answer to Question 18; State Guidance at 3, and thus in the usual case, the Commissioner’s review is limited to ensuring that DCYF has followed the required procedure. See supra at 13. This, however, is not the usual case.
Here, there was no evidence that DCYF ever prepared an educational stability plan as “a written part of the child’s case record,” so there was no plan to update when Student J. Doe moved to the group home in Pawtucket on May 26, 2017. Moreover, if DCYF had complied with ESSA, it would have been in contact with both the PPSD and the PSD, as well as Student J. Doe, his mother and his Educational Advocate, as soon as a change of residence was contemplated; and it should have completed its best interest determination and created an educational stability plan by the end of July. See Federal Guidance at 8, Answer to Question 8. In fact, to date, there is no plan and the best interest determination was not communicated to the PSD until September 7, 2017. (J. Tr. V.II at 195-96).
Thus, when Student J. Doe attempted to enroll in the PSD in June of 2017, the PSD was correct in assuming that ESSA’s school of origin presumption remained in effect and dictated that he should have been enrolled in the PPSD. The Federal Guidance is clear that children in foster care should be “immediately enrolled,” see Federal Guidance at 20, Answer to Question
33, and in the absence of a determination by DCYF that it would not be in the child’s best interest to be enrolled in the school of origin, immediate enrollment under ESSA means enrollment in the LEA of the school of origin. Here, that would have been the PPSD.[29]
In addition, it appears that when DCYF did make its best interest determination, it was based upon one meeting involving Student J. Doe, his Educational Advocate, his social worker and his mother (by phone). There was no evidence of any meaningful collaboration with the PPSD or the PSD. Thus here, DCYF’s failure to comply with ESSA’s procedural dictates made it impossible to know either its assumptions or the factors upon which it based its determination.[30]
Finally, although the passage of time coupled with a lack of contact with a school of origin may make it more likely that ESSA’s presumption would be rebutted,[31] DCYF’s failure to follow ESSA’s procedures when making its best interest determination with respect to Student J. Doe makes it impossible to determine whether this was in fact the case. Thus, ESSA’s presumption must remain in effect while DCYF makes that determination in the required manner which would include, at a minimum, meaningful collaboration with both the PSD and the PPSD and the creation of an educational stability plan which evidences that it considered the factors mandated by ESSA.
D. Conclusion
The case should be remanded so that DCYF can perform a best interest determination that complies with ESSA’s requirements, and in the meantime, Student J. Doe should be enrolled in the PPSD, the LEA where his school of origin is located, and pursuant to the Interim Order in this case, the PPSD should have convened an IEP meeting and put in place a program of education to provide Student J. Doe with a FAPE.
Footnotes
[1] In addition to the two cases captioned above, see DCYF v. Warwick School Committee and Central Falls Board of Trustees (Student M.V. Doe) RIDE No. 17-011 (Interim Order) (March 30, 2017); In re Residency of Student Z. Doe (DCYF filed a motion to intervene) (Interim Order after hearing) (May 23, 2017); DCYF v. Providence (In re Student FK) (Interim Consent Order) (August 8, 2017); DCYF v. North Smithfield Public School Department (In Re Student DB) (Interim Consent Order) (September 22, 2017); DCYF v. North Smithfield Public School Department (In Re Student EE) (Interim Consent Order) (September 25, 2017); DCYF v. Newport Public School Department (In Re Student E. Doe) (Interim Consent Order) (September 25, 2017); DCYF v. North Providence School Department (In Re Student R. Doe) (Interim Consent Order) (September 25, 2017); DCYF v. Pawtucket School Department (In Re Student ED) (withdrawn, September 25, 2017); DCYF v. Pawtucket School Department (In Re Student V. Doe) (withdrawn after Pawtucket agreed to enroll student (October 1, 2017); DCYF v. Pawtucket School Department (In Re Student J. Doe) RIDE No. 17-22 (order remanding) (October 10, 2017); DCYF v. Newport School Department (In Re Student G. Doe) (Interim Consent Order) (October 16, 2017); DCYF vs. Pawtucket School Department (In re Student JB) (in abeyance pending DCYF re-do of best interest determination); and DCYF v. Woonsocket School Department (In Re Student AV Doe) (hearing scheduled); see also Newport School Department v. Warwick School Department and DCYF (In Re Student L. Doe) (consolidated consent order, November 15, 2017); Newport School Department v. Providence Public School Department and DCYF (In Re Student E. Doe) (in abeyance re notification re status of child); Newport School Department v. Providence Public School Department and DCYF (In Re Student K. Doe) (consolidated consent order, November 15, 2017); Newport School Department v. Portsmouth School Department and DCYF (In Re Student A. Doe) (in abeyance re notification re status of child); Newport School Department v. West Warwick School Department and DCYF (In Re Student D. Doe) (in abeyance re notification re status of child); and DCYF v. Providence School Department (In re Student J. Doe) (hearing held on November 20, 2017).
[2] RIGL § 16-39-3.2 provides in pertinent part that: [i]n all cases concerning children, other than cases arising solely under § 16-2-17, the commissioner of elementary and secondary education shall also have power to issue any interim orders pending a hearing as may be needed to ensure that a child receives education in accordance with applicable state and federal laws and regulations during the pendency of the matter. Id. (§ 16-17-2 concerns the right to a safe school and procedures re student discipline).
[3] Hereinafter, for the sake of convenience, acronyms will be used to refer, interchangeably, to public school districts, departments and committees unless the context demands that the distinction be clarified.
[4] See, e.g., Student P. Doe v. North Smithfield School Committee, RIDE 0027-11 (December 23, 2011) at 3 (Petitioner has burden of proof in typical residency case); see also§ 16-64-3 (when alleged that “child’s residence has been changed due to break-up of child’s family... the party alleging the existence of these circumstances shall have the burden of proof and shall make proof by a preponderance of the evidence”).
[5] All citations to hearing transcripts or exhibits will be prefaced by either a “V” if referable to Student V. Doe (and DCYF v. NSSD, RIDE No. 17-21) or a “J” if referable to Student J. Doe (and DCYF v. PSD, RIDE No. 17-22).
[6] ESSA mandates that state plans: ensure the educational stability of children in foster care, including assurances that--- (i) any such child enrolls or remains in such child’s school of origin, unless a determination is made that it is not in such child's best interest to attend the school of origin, which decision shall be based on all factors relating to the child's best interest, including consideration of the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement; (ii) when a determination is made that it is not in such child's best interest to remain in the school of origin, the child is immediately enrolled in a new school, even if the child is unable to produce records normally required for enrollment; (iii) the enrolling school shall immediately contact the school last attended by any such child to obtain relevant academic and other records; and (iv) the State educational agency will designate an employee to serve as a point of contact for child welfare agencies and to oversee implementation of the State agency responsibilities required under
[7] On February 17, 2017, RIDE notified school personal that the Provisions had gone into effect and included a link to the Federal Guidance on its website. Judicial notice as to the promulgation of the Federal Guidance is hereby taken pursuant to RIGL § 42-35-10(1) and Superior Court Rule of Evidence 201. In addition, last Spring RIDE conducted a number of public forums throughout the state to engage the public with respect to the transition to ESSA.
[8] Although DCYF’s counsel represented that the State Guidance was official non-regulatory guidance and it bears the title “Non-Regulatory Guidance Doucment [sic]” it does not yet appear on the websites of either RIDE, DCYF or the Secretary of State, and the state’s Administrative Procedures Act makes clear that DCYF “may not rely on a guidance document, or cite it as precedent against any party to a proceeding, unless the guidance document is published on its agency website.” RIGL § 42-35-2.12(e). Yet, as will be discussed, counsel for both the NSSD and the PSD made arguments based upon its language and for present purposes, although not official non-regulatory guidance, it will be considered as some evidence of the guidance DCYF is actually providing and of its interpretation of ESSA.
[9] The term “school of origin,” while not defined in the text of ESSA, is defined under the federal and state Guidance under ESSA, as noted. The Fostering Connections to Success and Increasing Adoptions Act, while containing no definition of the term, employs the concept when mandating that state case plans provide for “school stability,” which, absent an express best interest determination to the contrary, is synonymous with staying in the school where the child is enrolled at the time of placement. Under the McKinney-Vento Homeless Assistance Act, which does
[10] See, e.g., Federal Guidance at 5 (“educational stability in foster care is a joint responsibility of educational and child welfare agencies, and to successfully implement these provisions, these entities will need to collaborate continuously”) 12 (encouraging the establishment of “a mechanism though which relevant parties can meaningfully participate in the best interest determination” which “could incorporated into previously established meetings, such as family team meetings, or at placement hearings, or may occur during a separate new meeting”) and 14 (“... relevant agencies should make every effort to reach agreement regarding the appropriate school placement of children in foster care”).
[11] It also should be noted that in many cases, DCYF is legally required to both ascertain a child’s need for an educational advocate and to keep the advocate informed. See, e.g., R.I. Board of Education Regulations Governing the Education of Children with Disabilities at §300.519 (effective October 9, 2013).
[12] See also RIGL § 16-64-1.1(b)(2) (state education aid “per bed”); § 16-64-1.1(c) (“The city or town determined to be responsible to DYCF for a per-pupil special-education cost pursuant to § 16-64-1.2 shall pay its share of the cost of educational services to DCYF or to the facility providing educational services”); and § 16-64-1.3(a) (city or town where home or facility is located “shall be responsible for the free appropriate public education of any child residing in those placements, including all procedural safeguards, evaluation, and instruction in accordance with regulations
[13] It should be noted that RIDE and DCYF have agreed to: [c]onvene a stakeholder work group to review existing State laws and regulations relating to school residency and funding for children in State care and to develop proposed statutory and regulatory language to ensure state statutes and regulations align with the school stability provisions of ESSA and Fostering Connections. RIDE/DCYF MOA, ¶ 9 at 2 (V. DCYF Ex. 6, I.D. only).
[14] Moreover, the various certifications and assurances made by the state to the federal government as a condition to the state’s continued receipt of federal funds for education moots any argument that local jurisdiction over education precludes federal preemption.
[15] And in the event that a child were to be removed from foster care and re-united with a parent, and then subsequently placed back into foster care, the school of origin would be the school at the time of the latest change in placement.
[16] RIDE and DCYF are in the process of developing guidance with respect to the allocation of such transportation costs.
[17] That section provides that: [p]arties having any matter of dispute between them arising under any law relating to schools or education may appeal to the commissioner of elementary and secondary education who, after notice to the parties interested of the time and place of hearing, shall examine and decide the appeal without cost to the parties involved. Id.
[18] Although DCYF is required to “provide for the enrollment” of children in its care immediately upon placement, see RIGL § 42-72.5-1, the “entire care, control and management of all public school interests” as well as its funding, has been delegated to LEAs (acting through school committees). See generally RIGL 16-2-9. Thus, it is logical that the relevant LEA (rather than DCYF) should ensure that the child is attending school during the pendency of a dispute. See also RIGL 16-64-2.
[19] Strictly speaking ESSA would not be applicable once a child has been reunified with his or her parent or parents since that child would no longer be in foster care, which is defined as “24-hour substitute care for children placed away from their parents or guardians and for whom the child welfare agency has placement and care responsibility.” See Federal Guidance, Answer Question 1 at 6. Yet, the Federal Guidance provides that “SEAs and LEAs should
[20] The Providence Public School Department (“PPSD”) was joined as an interested party. However, PPSD’s motion to be dismissed was granted at the hearing without objection.
[21] ESSA only became effective as of December 10, 2016 and was not retroactive. Thus, contrary to the arguments of counsel, it did not apply to Student V. Doe’s moves: (a) from East Providence to Providence in March of 2016; or (b) from East Providence to Newport in August of 2016. See id., ¶¶ 5-6 at 17.
[22] For example, although the Federal Guidance suggests that it may often be necessary for DCYF, LEAs and/or educational advocates to meet in person, such a meeting or meetings is not expressly mandated.
[23] And it should be noted that the Federal Guidance makes clear that DCYF should, as a general rule, share education-related materials from its case files with interested parties when making such best interest determinations. See Federal Guidance at 4, citing the federal Uninterrupted Scholars Act; see also id. at 23-24.
[24] RIGL § 16-64-5 provides in pertinent part that:
[25] And the U.S. Supreme Court made clear that such guidance is entitled to deference in Auer v. Robbins, 533 U.S. 218 (2001) and United States v. Mead Corp., 533 U.S. 218 (2001).
[26] As noted, ESSA’s Educational Stability Provisions did not become effective until December 10, 2016, and thus DCYF was not required to have made a best interest determination in connection with this move some seven months earlier.
[27] Indeed, PSD’s counsel requested that the Commissioner remove the Educational Advocate. (The request, along with a copy of the hearing transcripts, has been referred to the appropriate authority within RIDE).
[28] In addition, PSD at times reiterated its position that the Federal Guidance was of no legal force or effect (and cited Skidmore v. Swift & Co., 323 U.S. 134 (1944). Even if persuasive (which it is not, as has been discussed, see note 25, supra), the argument would not be relevant here, as will become apparent.
[29] PSD might have handled the matter more effectively by immediately contacting DCYF when Student J. Doe attempted to enroll. Yet, it should be noted that according to the testimony of its Assistant Superintendent, the PSD was informed that Student J. Doe had been enrolled in the PPSD which, as noted, is what should have occurred. (Id. at 193).
[30] Indeed, the Educational Advocate was not even aware that Student J. Doe had twice attempted to attack someone with a knife and twice been deemed not competent to stand trial. (Id. at 143, 151, 209).
[31] Although the argument was not made here, one might argue that since Student J. Doe never actually attended West Broadway Middle School, there is no effective school of origin and thus the state residency rules under Chapter 64 should be applied. Although not without logic, the argument is contradicted by the definition of “school of origin” in both the Federal and State Guidance, which refers to the child’s “enrollment” rather than “attendance.” See Federal Guidance at 11, Answer to Question 10; State Guidance at 2. This differs from the definition under McKinney-Vento and the state Regulations Re Education of Homeless Children and Youth, quoted at note 9, supra, which refer to the school the child “attended.”
ANTHONY F. COTTONE, ESQ.,
as Hearing Officer for the Commissioner
Dated: November 21, 2017
KEN WAGNER, Ph.D.,
Commissioner