STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES v. PAWTUCKET SCHOOL COMMITTEE (In Re: Student D.D.)
18-100K
DECISION AND ORDER
Held: The Pawtucket School Committee must reimburse DCYF for a portion of the cost of educational services provided to D. Doe during the time he has been placed at Harmony Hill School, a private residential facility in Chepachet, Rhode Island. The amount of reimbursement is fixed by R.I. Gen. Laws 16-64.1.1(c) at Pawtucket’s per pupil special education cost. His educational advocate is not a necessary party to this proceeding.
Date: September 6, 2019
Travel of the Case:
On or about December 17, 2018, the Department of Children, Youth and Families (“DCYF”) filed a Request For An Order For Residency Determination And Designation of Party Responsible For The Education Of A Youth Residing in A Residential Facility (the “Petition”). According to the Petition, DCYF had sought reimbursement for the educational costs of a child placed in its care from the Pawtucket School Department without success. Because Pawtucket had been identified as the city of residence of the foster child’s custodial parent (in the Petition) and Pawtucket had been designated by the Family Court as the responsible city for educational purposes (according to the Petition), the Pawtucket School Department (“Pawtucket”) was joined as a party to this dispute. The matter was assigned to the undersigned and scheduled for hearing on a date agreed to by the parties. On January 29, 2019 an amended Petition was filed to reflect the fact that the foster child’s legal guardians were his maternal great-grandmother and his maternal step great-grandfather and that they resided in Pawtucket at all times material to the Petition.
This case was heard on January 30, 2019 and February 15, 2019 at which times testimony was taken and documentary evidence was received into the record. The record closed upon receipt of the final written memorandum on June 6, 2019.
Jurisdiction to decide this controversy arises under R.I. Gen. Laws §16-39-1 (the Commissioner’s authority to hear “any matter of dispute between [parties] arising under any law relating to schools or education”) and R.I. Gen. Laws §16-64-6 (the Commissioner’s authority to resolve disputes arising when a school district or a state agency denies that it is responsible for educating a child).[1] R.I. Gen. Laws §16-64-1.2 also authorizes the Department of Elementary and Secondary Education to “designate the city or town to be responsible for the per-pupil special education cost” for children placed by DCYF in residential facilities and renders such designation “prima facie evidence” of the city or town’s financial responsibility for the child’s education as provided in §16-64-1.1. Taken together with the Commissioner’s statutory duty “to require the observance of all laws relating to elementary and secondary schools and education” per R.I. Gen. Laws §16-60-6 (9)(vii), these provisions of Title 16 place the resolution of such controversies squarely in the province of the Commissioner.
ISSUES
- Is the Pawtucket School Department responsible for payment of its per pupil special education cost as reimbursement to DCYF for a foster child placed at Harmony Hill School when the child has not been determined to be eligible for special education and related services under the IDEA or R.I. Gen. Laws §16-24-1 et seq.?
- Would a Commissioner’s order for Pawtucket to pay DCYF at a per-pupil special education daily rate result in placement of the State’s imprimatur on “labelling” Student D. Doe as a special education student when he has no disability, or result in different treatment of D. Doe because he is “perceived as though” he has a disability, in violation of Section 504?
- Would reimbursement at a special education rate result in a determination that D. Doe is a “child with a disability” in a manner that violates the IDEA and transfers a determination of whether Doe is a child with a disability to a Family Court judge instead of a team of qualified individuals and his guardians/educational advocate?
Findings of Relevant Facts:
- D. Doe is a fifteen (15) year old child who came into DCYF care and custody on August 7, 2017 as a result of truancy and behavioral issues. DCYF Ex. 1; Tr. Vol. I, p. 51.
- Doe’s legal guardians are his maternal great-grandmother and maternal step great-grandfather. They moved from Central Falls to Pawtucket, Rhode Island prior to the 2017-2018 school year and continued to live there as of the time of hearing. Stipulation; Tr. Vol. I, pp. 48-49.
- Doe has not attended school since the beginning of the 2017-2018 school year, after he and his legal guardians moved from Central Falls to Pawtucket and he was registered to attend Slater Junior High School and placed in Grade 8. DCYF Ex. 9.
- On June 5, 2018 a judge of the Family Court ordered that Doe be placed at Harmony Hill School, a residential treatment facility located in Chepachet, Rhode Island. DCYF Ex. 1 and 6;Tr. Vol. I, pp. 53-57. Doe was placed at Harmony Hill School on June 19, 2018 where he continues to reside. DCYF Ex. 6.
- Since being placed at Harmony Hill School, Student Doe has been educated as a “regular education” student.[2] The outplacement administrator for the Pawtucket School Department testified that she is familiar with Student Doe and that, according to his educational records, he was found to be ineligible for special education. She communicated this information to staff at Harmony Hill School at the time of his placement. DCYF Ex. 9; Tr. Vol. II, p.14.
- During the 2018-2019 school year Doe was considered to be a Grade 9 student at Harmony Hill School. S.C. Ex. A.
- Pawtucket acknowledges its ongoing administrative responsibility for Doe’s education (Stipulation, Tr. Vol. II, p. 58); however, based on his status as a general education student at Harmony Hill School, the outplacement administrator testified that her district disputes any obligation to reimburse DCYF at its per pupil rate for a special education student. Tr. Vol. II, pp. 10-11.
- Since July 10, 2018, Student Doe has been assigned an educational advocate from the Paul V. Sherlock Center on Disabilities at Rhode Island College. DCYF Ex. 10. As recently as January 31, 2019 the educational advocate raised the issue of his eligibility for special education with staff of the Pawtucket School Department. Tr. Vol. II, pp. 38-40.
Positions of the Parties
DCYF:
In memoranda filed in this matter, DCYF takes the position that regardless of whether this student is eligible for, or receives a program of special education or whether he does not (emphasis added) receive such a program of instruction and services at Harmony Hill School, the amount of Pawtucket’s reimbursement remains the same. The applicable state law requiring responsible LEA’s to reimburse DCYF (or the residential facility) for the cost of a student in foster care placed in such facilities is fixed at a per pupil special education cost. See R.I. Gen. Laws §§ 16-64-1.1(c) and 16-64-1.2. Despite contrary interpretations advanced to two successive Commissioners of Education charged with interpreting these laws, the construction of this statutory language has remained consistent. In DCYF v. Newport School Department, RIDE 19-006A and DCYF v. Cumberland School Department, RIDE 19-034A both Commissioner Ken Wagner and Commissioner Angélica Infante Green have construed the applicable statutes to require reimbursement to DCYF at the per pupil special education cost for students placed in residential facilities that include delivery of educational services “provided by that facility”.
The fact that Doe’s residential placement was ordered by the Family Court rather than an IEP team does not constitute a defense to DCYF reimbursement and any argument that RIDE is utilizing a “funding mechanism” that results in educational placements that violate a child’s entitlement to be educated in the “least restrictive environment” has been rejected in prior decisions of the Commissioner, most notably In Re: Residency of Student C.M. Doe, RIDE 023-13, DCYF v. Foster-Glocester Regional School District v. RIDE, RIDE, 009-14 and DCYF v. Foster-Glocester Regional School Committee (In Re: Student T.P.), RIDE 021-15.[3] See also DCYF v. Foster-Glocester Regional School Committee and North Providence School Committee, In Re: Student N. M., RIDE 015-16.
DCYF dismisses out of hand Pawtucket’s arguments that Student Doe has been “labelled” as having a disability and/or that he has been denied benefits by reason of being “perceived” as having a disability. Even if there had been some evidence of discrimination on the basis of disability or perceived disability, only Student Doe, or his guardian, would have legal standing to assert this claim.
DCYF also takes the position that Doe’s educational advocate has no role whatsoever in a proceeding in which DCYF asserts a claim for statutory reimbursement and requests that the Commissioner designate the LEA having administrative and financial responsibility with respect to Doe’s education. Thus, at the time of hearing, DCYF objected to Pawtucket’s Motion to Dismiss for the failure to join Doe’s educational advocate as a party to this case.
Pawtucket:
At the outset, counsel for Pawtucket notes that the facts here are essentially undisputed and despite the fact that the Petition characterized Doe as a student “determined to be eligible for special education services” (See Par. 2 of DCYF’s Amended Petition) there is no proof of this fact. To the contrary, the record in this case clearly demonstrates that Student Doe has not been determined eligible for special education and he does not receive such services at Harmony Hill School. He was tested to determine his eligibility for special education pursuant to a court referral and determined by a properly-constituted eligibility team not to be eligible for special education. This determination was made on January 16, 2018. (See DCYF Ex. 9) Communications from staff at Harmony Hill School to staff in the Pawtucket School Department confirm his status as a “regular education” student at this facility. (S.C. Ex. A) Based on this central and uncontroverted fact, the Commissioner is urged to interpret the statute requiring reimbursement to DCYF for this student’s educational costs to be based on Pawtucket’s per pupil cost for a general education student and not a special education student. This interpretation of the applicable statutory language is reasonable and avoids an otherwise absurd result. The prior erroneous and illogical interpretation of R.I. Gen. Laws §16-64-1.1(c) must be corrected by the present Commissioner, reconsidering the ruling in DCYF v. Newport, supra.
The former Commissioner’s interpretation also runs afoul of Section 504 of the Rehabilitation Act, which proscribes discrimination against disabled persons. 29 U.S.C. §794(a). The protections of Section 504 extend to individuals “regarded” as having a physical or mental impairment. By ordering the costs of Student Doe’s education to be reimbursed as though he were a student with a disability, i.e. at a per pupil special education rate, DCYF is putting the “imprimatur of the state of Rhode Island” on these children, labelling them as special education students as a matter of law- when they in fact have no disability. These children are thus “perceived as though they have a disability” and are treated differently because of it. The Commissioner cannot countenance such discrimination, Pawtucket argues.
The IDEA mandates that a team of qualified persons and parents determine if a child has a disability. In Student Doe’s case, this decision was instead made by a judge of the Family Court. The Commissioner cannot approve of this process as it is violative of Doe’s educational rights under 20 U.S.C. §1414(b)(4)(A).
Pawtucket also moved to dismiss DCYF’s Petition at the time of hearing for failure to join a necessary party, i.e. Doe’s educational advocate. The basis for this Motion was not amplified in Pawtucket’s Memorandum of Law.
DECISION
There have now been two decisions issued since DCYF v. Newport, supra, in which the Commissioner has affirmed the interpretation of R.I. Gen. Laws §§ 16-64-1.1 and 16-64-1.2 made in that case. See DCYF v. Cumberland School Department, RIDE 19-034A and DCYF v. North Providence School Department, RIDE 19-098A. The analysis of textual arguments virtually identical to those advanced by Pawtucket in this case has been thorough and well-reasoned. They need not be reiterated here. In addition, these decisions collectively constitute binding administrative precedent. To the extent any newly-appointed Commissioner would deem it appropriate to “reconsider” the rulings made by her predecessor, this Commissioner has done so now (twice) and on each occasion she has affirmed DCYF’s statutory entitlement to a per pupil special education rate for students placed in residential facilities such as Harmony Hill School.
As in the DCYF v. North Providence case, supra, there has been no evidence presented that requiring reimbursement at the special education rate for general education students violates either Section 504 of the federal Rehabilitation Act or the IDEA. There is no evidence that Student Doe is “treated differently” or that he has been “labelled” as a disabled student. Although the record contains little to no evidence on the details of either his educational or treatment program at Harmony Hill School, there is no evidence that the services he does receive at this facility have been diminished in any way because of the reimbursement rate required of Pawtucket and payable to DCYF.
Pawtucket has not amplified its argument that DCYF’s claim for reimbursement should not be heard without joinder of his educational advocate as a party to these proceedings. The role of the educational advocate or “surrogate parent,” as we understand it, is to participate in (and sometimes to make) educational decisions for a child in DCYF custody. DCYF’s Petition presented this hearing officer with no issues with respect to Student Doe’s educational programming or placement. The record does reflect that his educational advocate remains involved and continues to participate in those decisions that would affect his educational placement and programming.
For the foregoing reasons, DCYF’s Petition is hereby granted. Since the record does not indicate the total amount of reimbursement owed by Pawtucket to DCYF, the parties are directed to meet and attempt to agree on the amount and to make provision for prompt payment. If agreement and reimbursement are not effectuated within sixty (60) days from the date of this decision, the Commissioner shall, after notice to the parties, enter an ORDER requesting that the state’s General Treasurer withhold an amount to be documented by affidavit of the appropriate person at DCYF, without prejudice to DCYF’s entitlement to any additional amounts owed for D. Doe’s ongoing educational costs.
Footnotes
[1] It became clear at the time of hearing that, technically, this is not a “dispute over residency” because the basis for Pawtucket’s refusal to pay its per pupil special education cost to either DCYF or Harmony Hill School was not the fact that Doe’s guardians did not reside in the city, but rather based on Pawtucket’s interpretation of the statute creating DCYF’s claim for reimbursement as limiting the claim to its per pupil cost for a general education student.
[2] DCYF’s Petition asserted that “the child has been determined to be eligible for special education services” as documented by a RICHIST record, effective 7/07/17. This fact was not proven. Although Student Doe’s guardian reported that Doe had an IEP prior to moving from Massachusetts to Central Falls (where he lived for a year prior to moving to Pawtucket), he was determined ineligible for special education after a court-ordered referral was completed by the Pawtucket School Department on January 16, 2018. The eligibility team notes indicate: “At this time we cannot qualify [Student Doe] for special education services because he refused the educational testing. If further testing becomes available we will review the case”. DCYF Ex. 9.
[3] DCYF’s arguments and case citations on these points were made in anticipation of arguments not made by Pawtucket in this case. These arguments are premised on a fact that was asserted in DCYF’s Petition but not established in the record, i.e. that Doe had been determined to be eligible for special education and was participating in a program of special education at Harmony Hill. In several prior cases, LEA’s have challenged the Commissioner’s authority to order reimbursement, arguing (a) that a court-ordered placement of a child eligible to receive special education to residential facilities violates the IDEA because the child’s educational placement has not been made by an IEP team and (b) the instructional program for such special education student is not being provided in the least restrictive environment, as required by applicable federal and state special education regulations. Again, neither of these arguments was made by Pawtucket in this case.
For the Commissioner,
Kathleen S. Murray
Hearing Officer
Angélica Infante-Green,
Commissioner
Date: September 6, 2019