STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN YOUTH AND FAMILIES v. PAWTUCKET PUBLIC SCHOOL DEPARTMENT
RIDE Case No. 18-024A
INTERIM DECISION AND ORDER
Held: ESSA’s presumption that it is in the best interest of a foster child to continue attending his or her school of origin following a move into a group home was rebutted due to the impossibility of continued attendance in the school and the town where the group home was located is responsible for ensuring that the child is provided with a FAPE.
On March 16, 2018, Petitioner, the Rhode Island Department of Children Youth and Families (“DCYF”), requested interim protective relief pursuant to RIGL § 16-39-3.2 to require that Respondent, the PAWTUCKET SCHOOL DEPARTMENT (the “PSD”), immediately assume responsibility for providing Student K. Doe, a seventeen-year-old child in DCYF custody, with a free, appropriate, public education (the “FAPE”) under the federal Individuals with Disabilities Education Act (the “IDEA”).
I. UNDISPUTED FACTS
The following facts were agreed to by counsel for PSD and counsel for the North Providence School Department (the “NPSD”), were recited at a March 22, 2018 hearing before the undersigned hearing officer, and are supported by the documents that were introduced into evidence at the hearing.
1. On February 29, 2016, K. Doe, who is a student with a disability, was placed by the NPSD at the Bradley School in Providence, Rhode Island (the “Bradley School”).
2. On July 13, 2017, the annual review of K. Doe’s individual educational program (“IEP’) was conducted by the NPSD. At the time of his placement at the Bradley School in 2016 and the annual review of his IEP in 2017, K. Doe resided in North Providence, Rhode Island, with his adoptive mother. See PSD Ex. 1 (RIDE school attendance history) and PSD Ex. 2 (Bradley School record and IEP).
3. In June of 2017, K. Doe was admitted to a residential substance abuse treatment center in Cranston, Rhode Island. On July 25, 2017, K. Doe was released from the treatment center and placed by DCYF in the “Turning the Corner” foster group home (the “Group Home”), which is located in Pawtucket, Rhode Island. See DCYF Ex. 1 (DCYF record of placement).
Thus, as reflected in K. Doe’s current Intra-State Education Identification Card, K. Doe’s residency for school purposes is Pawtucket. See PSD Ex. 4.
4. DCYF did not conduct the “best interest determination” contemplated by the educational stability provisions of the federal Every Student Succeeds Act (“ESSA”) in connection with K. Doe’s placement in the Group Home in Pawtucket in July of 2017.
5. K. Doe was admitted to Butler Hospital on November 14 and December 27, 2017, and on each occasion remained in the hospital for a week. On January 24, 2018, he was admitted to Hasbro Children’s Hospital, where he remained for two days. After each hospital stay, he returned to the Group Home in Pawtucket. See DCYF Ex. 1 (DCYF placement record).
6. An annual review of K. Doe’s IEP was conducted on February 12, 2018 at the Bradley School. Staff from the PSD attended the review and signed the IEP. See PSD Ex. 2.
7. Sometime later in February of 2018, K. Doe was suspended and then discharged from the Bradley School, which claimed it could no longer meet his behavioral needs. See id. Thus, the parties agree that re-enrollment at the Bradley School, which is K. Doe’s “school of origin” under ESSA, is no longer a possibility.
8. On February 24, 2018, K. Doe was admitted to Bradley Hospital. Upon his discharge on March 7, 2018, he returned to the Group Home in Pawtucket. See id.
9. On March 6, 2018 – the day prior to his discharge from Bradley Hospital – DCYF conducted a best interest determination under ESSA. Although it had been notified, the NPSD did not participate in the conference.
10. In its best interest determination, DCYF, while recognizing that it was “actively searching for another foster care placement that can meet his behavioral health needs,” see PSD Ex. 5, concluded that:
(a) K. Doe had a history of multiple school transfers, having changed school districts six times since kindergarten. See id. at 2;
(b) had been discharged from the Bradley School in February of 2018 and has not attended school since that time. See id. at 3; and
(c) PSD should enroll K. Doe “immediately” into “the most appropriate school.” Id.
II. POSITIONS OF THE PARTIES
1. DCYF
DCYF relied upon the Commissioner’s consolidated decision in DCYF v. North Smithfield School Department, RIDE No. 17-21 and DCYF v. Pawtucket School Department, RIDE No. 17-22 (November 21, 2017) (the “Consolidated ESSA Decision”), and argued that:
(a) since the parties agreed that it was not possible for K. Doe to continue attending his school of origin, i.e., the Bradley School, ESSA’s school of origin presumption was effectively rebutted, and thus whether or not DCYF should have conducted the “best interest determination” required by ESSA when DCYF moved K. Doe from his adoptive mother’s home in North Providence to the Group Home in Pawtucket in June of 2017 is moot;
(b) when ESSA’s school of origin presumption is rebutted, state law under title 16, chapter 64 – which assigns financial and other responsibility for providing a FAPE based upon residency – is applicable; and
(c) since the group home where K. Doe lives is located in Pawtucket, applicable state law provides that the PSD is responsible for providing him with a FAPE.
2. The PSD
The PSD argued that neither ESSA’s educational stability provisions nor simple fairness dictated that it should be required to provide K. Doe with a FAPE since:
(a) K. Doe had resided in North Providence far longer than he had resided in the Group Home in Pawtucket;
(b) DYCF was actively searching for another residential placement;
(c) K. Doe had originally been placed in his school of origin, i.e. the Bradley School, by the NPSD; and
(d) it would be poor public policy to base a decision to place such a significant financial responsibility upon a municipality based solely upon the fact that a group home was located within its boundaries, especially since if ESSA’s school of origin presumption were subsequently to become applicable, the responsibility might well continue even if K. Doe were to move outside the PSD.
3. The NPSD
The NPSD adopted the arguments made by DCYF. In addition, the NPSD cited the Commissioner’s Consolidated ESSA Decision and argued that the PSD was estopped from challenging DCYF’s March 6, 2018 best interest determination until it had provided K. Doe with a FAPE.
III. INTERIM DECISION[1]
The PSD must provide K. Doe with a FAPE. For that reason alone, DCYF’s request for interim relief must be granted.
DCYF is correct that the impossibility of continued attendance in K. Doe’s school of origin, i.e., the Bradley School, meant that ESSA’s school of origin presumption was effectively rebutted, and thus as the Commissioner noted in the Consolidated ESSA Decision and repeated more recently in DCYF v. Providence Public School Department (In re Student J. Doe) RIDE No. 17-02, “there would be no reason, as a matter of law or policy, not to apply the state residency rules under Chapter 64.” Consolidated ESSA Decision, supra, at 12; DCYF v. Providence (J. Doe), supra, at 6-7. And applying state residency rules under Chapter 64 leads to the conclusion that the PSD is responsible for providing K. Doe with a FAPE. See RIGL § 16- 64-1.3(a) (city or town where the group home 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...”) and § 16-64-1.1(a) (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”).
Finally, the PSD, while citing generally to the Federal ESSA Guidelines, see generally Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care (June 23, 2016), has not cited to any specific language which supports its notion that ESSA mandates that here, the NPSD should be made responsible for providing K. Doe with a FAPE. Indeed, PSD’s complaint should be directed to the General Assembly which, as noted, has made clear that educational responsibility for foster children in group homes is assigned to the “city or town” where the group home “is located.” RIGL § 16-64-1.3(a).
IV. INTERIM ORDER
For all the above reasons, it is hereby ORDERED:
1. PSD shall be financially and otherwise responsible for providing K. Doe with a FAPE, forthwith; provided, however, that
2. The above shall be without prejudice to the PSD’s right to argue that it is entitled to an evidentiary hearing based upon factual or other arguments it was unable to make at the evidentiary hearing that was held on March 22, 2018.
Footnotes
[1] The Commissioner’s has jurisdiction under RIGL §§ 16-39-3.2 and/or 16-39-1, and the applicable standard of review is de novo. See Alba v. Cranston School Committee, 90 A.3d 174, 184-85 (R.I. 2014), citing Slattery v. School Committee of Cranston, 116 R.I. 252, 262, 354 A.2d 741, 746 (1976).
ANTHONY F. COTTONE, ESQ.,
as Hearing Officer for the Commissioner
KEN WAGNER, Ph.D.,
Commissioner
Date: May 8, 2018