STATE OF RHODE ISLAND
AND
PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, Petitioner
v.
BURRILLVILLE SCHOOL DEPARTMENT, Respondent
In Re: A. DOE
19-001K
DECISION
HELD: The Burrillville School Department must reimburse DCYF for the expenses of A. Doe’s education during the period of time that he was placed at Harmony Hill School, a private residential facility in Chepachet, Rhode Island. The Family Court made a determination that Doe’s placement at Harmony Hill was necessary for Doe’s behavioral/mental health treatment and not for educational purposes. The amount of reimbursement is fixed by R.I. Gen. Laws 16-64-1.1(c) at Burrillville’s per pupil special education cost.
DATE: October 21, 2019
Travel of the Case:
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" with then-Commissioner Ken Wagner on January 2, 2019. The undersigned was designated by the Commissioner to be the hearing officer in this matter and it was scheduled for hearing on a date agreed to by the parties, April 12, 2019. Testimony and documentary evidence were taken at that time. The record closed on June 22, 2019 upon the filing of the parties' memoranda of law.
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.
Issue: Is the Burrillville School Department ("Burrillville") responsible for payment of its per pupil special education cost to DCYF as reimbursement for Doe's education during the period of time he was placed at Harmony Hill School?
Findings of Relevant Facts:
Student A. Doe was committed to the care and custody of DCYF on August 9, 2017.[2] DCYF Ex. 1; Tr. pp. 27-28.
After being hospitalized at two different psychiatric hospitals during the month of September, 2017, Doe was placed at Harmony Hill School, a residential treatment facility in Chepachet, Rhode Island ("Harmony Hill") on October 2, 2017. DCYF Ex. 9.
Doe's placement at Harmony Hill was initially placement at DCYF’s discretion, but it was "ratified" by the Family Court judge overseeing his case on March 26, 2018 when the judge ordered maintenance of the "status quo" and conditioned Doe's removal from Harmony Hill upon Court authorization and presentation of supporting documentation for such change in placement. DCYF Ex. 2 and 3.
The Burrillville School Department was not represented at the August 1, 2017 hearing at the Family Court and had no input on the issue of Doe's educational needs at that time. Tr. pp. 43-45.
From October 2, 2017 to March 15, 2019 Doe received treatment at Harmony Hill.
He stabilized and by the time of his discharge from Harmony Hill he was able to "step down" to a specialized foster care placement described by his social worker as a "treatment foster care placement". Tr. p. 32; DCYF Ex. 9.
Doe is a student with a disability and eligible for special education. Since at least June 16, 2017 he has had an individualized education program ("IEP"). During the period June 16, 2017- June 15, 2018 he had an IEP developed by the Burrillville School Department and on May 25, 2018 another IEP was developed for him while he was at Harmony Hill. DCYF Ex. 10, 11 and 14.[3] A representative of the Burrillville School Department was present at the May 25, 2018 IEP meeting at Harmony Hill, but the record does not indicate her level of participation at that meeting. DCYF Ex. 14; Tr. pp. 77-78.
His IEP at the time he was placed at Harmony Hill called for his educational placement in a "[g]eneral education class with special education consultation, supplementary aides (sic) and services or part time services in a special class"
DCYF Ex. 10. His educational environment is indicated as "inside regular class 80% or more of the time". DCYF Ex. 10.
The IEP developed for him while at Harmony Hill on May 25, 2018 calls for his educational placement in a [s]pecial education residential school in a separate public or non-public facility". DCYF Ex. 14. His educational environment is indicated to be "inside regular class 79%-40% of the time" and "inside regular class less than 40% of the time".[4] DCYF Ex. 14.
Burrillville has declined financial and administrative responsibility for Doe's placement at Harmony Hill. DCYF Ex. 5.
Positions of the Parties
DCYF:
Counsel for DCYF argues that Burrillville is asserting defenses to the payment of monies owed to DCYF utilizing arguments that have been rejected by the Commissioner in previous cases. Reliance on special education laws to avoid financial responsibility to pay the per pupil special education cost for a child in a non-educational residential placements is misplaced. Substantial precedent set in appeals to the Commissioner of Education has established that LEA's must reimburse DCYF when a child's placement at a residential facility is for "child welfare" reasons as opposed to being an educational placements pursuant to the IEP process. Counsel notes that challenges to the Commissioner's authority to order a town or city to pay, on the basis of purported violations of special education laws were rejected in Department of Children, Youth and Families v. Foster-Glocester Regional School District v. Rhode Island Department of Education, RIDE 009-14; Department of Children, Youth and Families v. Foster-Glocester Regional School Committee (In Re: Student T.P.) RIDE 021-15 and, most recently, in DCYF v. Foster-Glocester Regional School Committee and North Providence School Committee, In Re: Student N.M. RIDE 015-16. All of these decisions constitute binding administrative precedent. The arguments advanced in this case, i.e. that IDEA, RIDE Special Education Regulations and RIDE assurances to the United States Department of Education for acceptance of Part B funds should prohibit Rhode Island from utilizing a "funding mechanism" that supports placements that violate the least restrictive environment provision of the IDEA have been rejected by the Commissioner.
Although the current Commissioner did not issue the decisions establishing the above-described precedent, she should nonetheless affirm the rulings in these cases.
DCYF submits that the principles underlying the Commissioner's precedent in these matters remain sound. The Commissioner recognizes that the Family Court exercises exclusive jurisdiction to make residential placement decisions for children in DCYF custody under circumstances in which the child's health, safety and welfare (and that of the family) are at risk. When presented with an education appeal after such a decision has been made by the Court, the Commissioner has always deferred to the Family Court, recognizing that decisions based on a child's "welfare" and "best interests"
are beyond the Commissioner's expertise in educational matters. If the placement decision is per the terms of a specific Court Order, the Commissioner has also taken the position that the Commissioner has no authority to review such Orders.
With respect to the lack of notice and Burrillville's inability to participate in the decision made by the Court to continue Doe's placement at Harmony Hill, DCYF responds that given the nature of Family Court proceedings, including school staff or members of IEP teams is not appropriate. The Family Court considers extremely confidential matters and is mandated to keep such matters confidential under R.I. Gen. Laws 42-72-8. Family Court juvenile proceedings are closed to the public. It would be improper for representatives of school departments to participate in such proceedings. Despite the IEP team's knowledge of a child's educational issues, theirs is a more limited focus than that of the team of DCYF social caseworkers, DCYF attorneys and social workers, CASA attorneys and social workers, public defenders, private attorneys and representatives of private agencies who provide input at the time a decision on residential placement is made.
Burrillville's arguments would require that the Commissioner resolve a dispute as to Doe's receipt of FAPE. As has been pointed out in a prior decision on this point:
What the School Committee fails to mention is that RIDE is bound not only by the IDEA's substantive provisions, but also by its procedural dictates, which make clear that hearings involving a FAPE must be conducted by an impartial hearing officer who is not an employee of RIDE, see 20 U.S.C.A. §1415 (b)(2), a prohibition which is reiterated in the applicable state regulations.
See Special Ed. Regs. at §300.511 (c)(i)(A).[5]
As observed in DCYF, supra,
even if the Commissioner... has jurisdiction to decide issues involving a FAPE, (which... he does not) deference to a Family Court placement order... would be appropriate under the separation of powers doctrine, and by analogous principles of comity...
Thus, Burrillville's argument that the Commissioner must determine in this case that Doe's educational programming at Harmony Hill does not provide him with FAPE and that it is procedurally flawed lacks merit, as special education law requires that impartial hearing officers who are not state employees make such determinations.
Faced with the weight of precedent on the issues it seeks to raise as defenses to payment of reimbursement to DCYF, Burrillville cites cases that are inapplicable in this context, i.e. they apply to educational placement decisions as opposed to child welfare placement decisions. Burrillville also cites as support for its "defense" to DCYF's claim cases that are based on the statutes of other states that have no precedential value given a different statutory scheme in Rhode Island. Based on a detailed analysis of these cases, counsel for DCYF maintains that not one of them should derail the proposition advanced by DCYF in this case: that Rhode Island law makes Burrillville responsible for the payment of its per pupil special education cost for the period of time that Doe was placed at Harmony Hill.
Burrillville School Department Counsel for Burrillville emphatically argues that the Commissioner cannot comply with the assurances upon which Rhode Island's receipt of IDEA Part B funds are conditioned and at the same time order payment as requested by DCYF. As argued in prior cases raising this issue, Burrillville submits that funding Doe's education at Harmony Hill violates both his substantive and procedural rights under IDEA. Counsel requests that the Commissioner reconsider rulings made by her predecessor that incorrectly compel LEA's to fund educational placements that fail to provide special education students with educational programs in the "least restrictive environment" as required by IDEA, §§ 1400 et seq. From its perspective, prior rulings that have rejected IDEA-based defenses to payment of reimbursement based upon state law have perpetuated a "funding mechanism" that:
Result[s] in placements that violate the [LRE requirement], and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in a failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child's IEP.
20 U.S.C §1412(a)(5)(B)(i); see also 34 C.F.R. §300.114 (b)(i). (cited at page 5 of Burrillville's brief).
Additionally, both RIDE as the SEA and Burrillville as the LEA are charged with ensuring that with regard to any child with a disability, the placement decision is made by an IEP team and is made in conformity with the LRE provisions. Doe's educational placement at a residential facility does not conform to either of these requirements. It is undisputed that Doe had an IEP from Burrillville for school year 2017-2018 (DCYF Ex. 10) that placed him in a public school setting, not a residential placement. It is also undisputed that the Family Court took no testimony from Burrillville, nor was Burrillville a party to that proceeding when it determined that Doe required a residential placement. 6
A purported IEP[6] developed for Doe on May 25, 2018 while he was at Harmony Hill which identifies his placement as a "[s]pecial education residential school in a separate public or non-public facility" also provides as an explanation for such "more restrictive" setting: "[Doe] was placed at Harmony Hill School by DCYF". The district implicitly argues that this placement, and this IEP, are a nullity.
Burrillville argues that there should be no "only in Rhode Island DCYF exception" to the IDEA and cites a host of cases that stand for the proposition that family court judges cannot bypass IDEA requirements and, when they do states cannot employ a "funding mechanism" providing financial support for these violations. Stated another way, the Commissioner should decline to enforce the provisions of Title 16 that provide DCYF with reimbursement (from LEA's and with public funds) in situations (such as exists here) in which a judge has bypassed the detailed processes of special education law and denied a child the free appropriate public education to which he or she is entitled.
Contrary to anticipated arguments of DCYF, Burrillville is not expecting the Commissioner to ignore a Family Court placement order and determine on her own whether a student is receiving a FAPE. The Court can place Doe wherever it determines is necessary for the child's welfare. The Commissioner, however, cannot make Burrillville pay for Harmony Hill because the undisputed fact is that A. Doe's IEP team has determined that he should be educated in the least restrictive environment, in this case, the Burrillville Middle School. Harmony Hill is a more restrictive placement than Burrillville Middle School, as established in testimony presented by the district. Accordingly, educating Doe at Harmony Hill, the more restrictive environment, violates his IEP and, therefore, does not afford him FAPE. DCYF’s request for reimbursement for such an educational program must be denied. The new Commissioner should not enter an order enforcing such a "funding mechanism" because the IEP and LRE requirements of IDEA pre-empt DCYF's reliance on R.I. Gen. Laws §16-64-1.1(c).
DECISION
The arguments made by the Burrillville School Department in this matter are essentially the same as those made in three cases cited as precedent by DCYF, the most recent of which was Department of Children, Youth and Families v. Foster-Glocester Regional School Committee and North Providence School Committee, RIDE 015-16.[7] In the first two of these cases the analyses of IDEA-based arguments virtually identical to those advanced by Burrillville in this case were thorough and well-reasoned. They need not be reiterated here. In addition, these decisions collectively constitute binding administrative precedent. There has been no legal basis established through case law or otherwise for the position that a new Commissioner has authority to "reconsider" rulings made by her predecessors, especially when the issue is the application of a provision of state law, rather than an interpretation of a law or regulation, over which each Commissioner arguably exercises some discretion. Absent a ruling overturning binding administrative precedent, or a change in the law at issue here, the Commissioner must apply and enforce the provisions of R.I. Gen. Laws 16-64-1.1 (c). The Burrillville School Department must reimburse DCYF at its per pupil special education cost for the expenses of Doe's education during the period in which he was placed at Harmony Hill School. Questions, concerns and assertions of entitlement with respect to a student's receipt of a free appropriate public education[8] have been determined not to be an effective defense to DCY's statutory claim for reimbursement. Such rulings are hereby affirmed.
Footnotes
[1] It became clear when closing memoranda were filed in this matter that, technically, this is not a "dispute over residency" because the basis for Burrillville's refusal to pay its per pupil special education cost to either DCYF or Harmony Hill School was not the fact that Doe's adoptive parent did not reside in the town, but rather that procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA) precluded reimbursement for Doe's educational placement from the town of Burrillville.
[2] In her testimony Doe's social worker fixed the date as August 1, 2017. The Court's ORDER is dated August 9, 2017.
[3] On both of the IEP's in evidence, there is indication that Doe does not require extended school year ("ESY") services. It is assumed that when the parties confer as to any amounts owed to DCYF this fact may be relevant.
[4] The inference taken here is that there was a difference of opinion on this point on the part of the members of Doe's IEP team.
[5] Department of Children, Youth and Families v. Foster-Glocester Regional School Committee, RIDE No. 021-15, at page 8.
[6] Testimony of Burrillville's current Director of Pupil Personnel Services clarified that his predecessor's signature on this IEP reflected her attendance at the May 25, 2018 and not her participation in its development. Counsel for Burrillville argues that this Harmony Hill IEP "has no legal effect". See footnote 2 of Burrillville's Memorandum, citing the requirement that IEP's must be written by the LEA unless the LEA exercises its discretion to delegate that authority, which did not happen in Doe's case.
[7] This case was a recommended decision of the undersigned hearing officer to prior Commissioner Ken Wagner.
[8] In previous cases on this issue, the Commissioner has directed that concerns with respect to a student's receipt of FAPE under such circumstances may be raised with the Family Court (through a motion to amend the Family court Order or an appeal of the Order), filing a complaint with RIDE's Office of Student, Community and Academic Supports (OSCAS), and/or filing a due process complaint under the IDEA. See DCYF, supra, at pp. 13-14.
For the Commissioner,
Kathleen S. Murray
Hearing Office
Date: October 21, 2019
Angelica Infante-Green
Commissioner