STATE OF RHODE ISLAND
AND
PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, Petitioner
v.
PAWTUCKET SCHOOL DEPARTMENT, Respondent
(In Re: Student L. P.)
RIDE No. 19-032K
DECISION AND ORDER
Held: The Pawtucket School Department must reimburse DCYF for a portion of the cost of educational services provided to P. Doe during the time she has been placed at the Walden Street School, a private residential facility located in Concord, Massachusetts. The amount of reimbursement is fixed by R.I. Gen. Laws §16-64-1.1(c) at Pawtucket's per pupil special education cost. Reimbursement at a per-pupil special education rate does not label Student Doe as a student with a disability or discriminate against her in violation of Section 504 of the Rehabilitation Act of 1973. The payment of such reimbursement does not, in and of itself, identify her as a student with a disability, qualify her for special education services or entitle her to FAPE under the IDEA.
Date: November 5, 2019
Travel of the Case:
On or about February 8, 2019, 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 from the Pawtucket School Department ("Pawtucket") for the educational costs of Student L.P. Doe, a child placed in its care, without success. DCYF believed that Student L.P. Doe's custodial parent lived in Pawtucket at the time the child was placed by the Rhode Island Family Court in a residential facility located in Concord, Massachusetts, i.e., May 10, 2018, and that the parent continued to reside there.
The matter was assigned to the undersigned and scheduled for hearing on a date agreed to by the parties. On April 23, 2019 the case was heard and thereafter counsel for the parties filed closing memoranda. This process ended on July 1, 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 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 child in foster care placed by the Family Court at the Walden Street 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 stigmatize children in DCYF custody and "label" them as special education students as a matter of law when, in fact, they have no educational disability? Are such children treated differently and/or discriminated against because they are "perceived as though they have a disability"?
- Does reimbursement at a special education rate result in a determination that P. Doe is a "child with a disability" and the provision of special education and related services to her based on a Family Court Order (or the decision of a DCYF social worker) instead of the determination of a team of qualified persons and her parent, as is required under the IDEA?
Findings of Relevant Facts:[2]
At the time DCYF filed this Petition, Student P. Doe was sixteen (16) years old. From May 10, 2018 to the present she has been in DCYF care and custody.
P. Doe was not and is not a child with a disability and is not entitled to special education services.
At all relevant times, Doe's custodial parent resided in the City of Pawtucket.
On or about April 20, 2018 DCYF mailed Pawtucket a written Notice of Responsibility for a child in state care regarding Doe's placement at the Walden Street School.
Per an Order of the Family Court, on May 10 2018 P. Doe was placed at Walden Street School, a private residential facility located in Concord, Massachusetts. Such placement includes the delivery of educational services provided by this facility.
P. Doe has resided at the Walden Street School ("Walden") and received educational services from May 10, 2018 to the present, for a total of 51 days in fiscal year 2018 and a total in fiscal year 2019 yet to be calculated.
Pawtucket's daily per pupil special education rate for fiscal year 2018 is $98.67 and for fiscal year 2019 is $103.08. Pawtucket's daily per pupil general education rate is $38.28 for fiscal year 2018 and $39.82 for fiscal year 2019.
Despite due demand, Pawtucket has refused to reimburse DCYF for the educational services provided to P. Doe at Walden or to pay Walden directly at its special education rate, arguing that P. Doe was not eligible to receive special education services and, therefore, the lower general education rate is applicable.
At all times, Pawtucket has been ready, willing and able to educate Doe in a public school setting.[3]
Positions of the Parties:
Pawtucket:
Pawtucket submits that if the Commissioner orders it to reimburse DCYF at the rate DCYF currently claims, she will be permitting a state agency to "extract" tuition at a special education rate for a child who is not a student with a disability and is not eligible to receive special education and related services. Pawtucket can ill-afford subsidizing DCYF's budget. Such an order would place an imprimatur on a stereotype that all children in DCYF custody must be treated as special education students as a matter of law. Prior cases establishing the proposition that communities like Pawtucket must reimburse at a higher per pupil special education rate even for general education students in state care must be re-examined. Pawtucket urges a reconsideration of prior interpretations of Title 16 Chapter 64, with the resulting conclusion that payment of its per-pupil rate for general education students such as P. Doe is the correct interpretation of the requirements of the law that obligate local districts to reimburse DCYF for educational costs of children placed in residential facilities. A different interpretation is an erroneous interpretation of R.I. Gen. Laws §16-64-1 et seq.
As it has consistently argued in many cases of this type, Pawtucket submits that payment at a per-pupil special education rate stigmatizes children in DCYF custody and labels them as students with disabilities. Such children are then perceived as though they have a disability and are treated differently because of it. The Commissioner also cannot permit the IDEA to be violated. The IDEA requires that a team of qualified persons and the parents of a child determine if the child has an educational disability. DCYF's request would have the Commissioner approve a Family Court, or a DCYF social worker, making a determination that a child is a child with a disability. This procedural violation of the IDEA cannot become established precedent set at the Commissioner's level. The Commissioner must rule that DCYF is entitled to reimbursement at the rate for a general education student, no more, no less.
DCYF:
As it has in many prior cases in which similar "defenses" to payment have been asserted by local school districts, DCYF argues that the Commissioner should not accept the invitation to reverse the decisions made in DCYF v. Newport School Department, RIDE No. 19-006A and DCYF v. Cumberland School Department, RIDE No. 19-034A. The Commissioner has, in both cases,[4] made sound interpretations of the plain and ordinary language of the applicable statutory provisions. Legislative history of R.I. Gen. Laws §§16-64-1.1, 16-64-1.2 and 16-64-1.3 has reinforced the interpretation that reimbursement at a per-pupil special education rate is required by the responsible local school district when a child is placed in residential care and the facility provides educational services. The conscious choice of the General Assembly to remove any reference to the general education rate "more logically reflects the Legislature's recognition that the actual cost of providing either general or special education services [at such facilities] regularly exceeds even the higher special education per pupil rate". Newport, supra, at page 11.
Pawtucket's allegation that the "funding mechanism" established to meet the educational costs of children in DCYF custody placed for treatment purposes, not educational reasons, at a residential facility violates Section 504 and/or the IDEA has been rejected on multiple occasions.[5] The theory that "billing their home school departments the special education daily rate for their education" violates Section 504 of the Rehabilitation Act of 1973 has not been fully developed in Pawtucket's memorandum. DCYF declines to engage in conjecture by constructing a legal theory under Section 504 (and submitting arguments in opposition). If there were a Section 504 violation to which a response should be made, DCYF points out that Pawtucket lacks legal standing to raise it and this is not one of the appropriate forums in which to raise violations of Doe's civil rights. The Commissioner should infer that DCYF and P. Doe's custodial parent are in a better position to advocate for and represent P. Doe's interests than Pawtucket. The focus of Pawtucket's concern here is to avoid financial and educational responsibility for Doe's education. In fact, its asserted "injury" for purposes of conferring legal standing to raise claims on behalf of Doe is "measured by the money sought by DCYF" (Pawtucket memorandum at pp. 6-7).
To qualify for protection under Section 504 as a non-disabled person who is "regarded as having a (qualifying) physical or mental impairment," Doe would have to establish that she is "regarded as having an impairment" under Section 504. Counsel for DCYF points out that none of the requirements set forth under 34 C.F.R. 84.3(j)(iv) for being "regarded as having an impairment" are established in this record. There is absolutely no evidence that Doe is "...treated by a recipient as having such an impairment". There are no stipulated facts to support that DCYF treated Doe any differently than any other foster child in a residential facility or otherwise treated her as having one of the physical or mental impairments identified in the regulations.
Furthermore, Pawtucket has not identified any manner in which Student Doe has been the victim of a discriminatory practice. None of the "discriminatory actions prohibited" (listed in 34 C.F.R.
104.4(b)(1) are reflected in the facts to which the parties have stipulated.
The arguments raised by Pawtucket as "defenses" to DCYF's claim for statutory reimbursement should be rejected and the Commissioner should order that full reimbursement be made for the total number of days for which Doe has been placed by DCYF for treatment at this private residential facility.
DECISION
The primary issue raised in this case has been decided, at this point in time, in four prior decisions of the Commissioner.[6] It is now well-settled precedent that when a child in DCYF custody is placed at a residential facility that includes educational services provided by the facility, the responsible school district must reimburse DCYF, or pay the facility directly, the amount of its per-pupil special education cost.
With respect to the second and third arguments raised by Pawtucket- that requiring reimbursement at the special education rate for general education students violates both Section 504 of the Rehabilitation Act of 1973 and the IDEA, there is no proof that ordering reimbursement to DCYF would violate either of these statutes. As in the prior two cases in which these issues were raised as defenses to the required statutory reimbursement[7] there is no evidence that Doe was treated differently, that she was "labeled" as a disabled student or that she was disadvantaged or victimized by any discriminatory practice prohibited under either state[8] or federal law. As with the record in the previously-cited cases, there is little to no evidence as to the actual nature of Doe's educational programming during the time he has been placed at the Walden School. There is no indication in this record that the educational services she does receive while she is in treatment at this residential facility are diminished or would be diminished in any way because of the rate of reimbursement DCYF seeks in this matter. There is no evidence that she has been identified as a student with a disability or that she has been provided with special education and related services without the protocols required by the IDEA.
For the foregoing reasons, DCYF's Petition is granted. Since the record does not indicate the total amount of reimbursement owed by Pawtucket to DCYF to date, 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 P. Doe's ongoing educational costs at the Walden School.
Footnotes
[1] Pawtucket actually does not deny that it is the "responsible LEA" for Student Doe; but objects to DCYF's fixing of its financial obligation at a per pupil special education rate, rather than a general education rate.
[2] The parties stipulated to all relevant facts at the time of the hearing.
[3] The inference is that the "public school setting" is in an appropriate school within the Pawtucket School Department.
[4] Actually, these cases were issued by two successive Commissioners, Ken Wagner and Angélica Infante-Green.
[5] Since P. Doe is not a student with a disability and is not eligible for special education services pursuant to state or federal law, the "least restrictive environment" arguments anticipated by DCYF and against which DCYF argues in its memorandum are not applicable in this case.
[6] In addition to DCYF v. Newport and DCYF v. Cumberland, supra, the Commissioner ruled on this issue in DCYF v. North Providence School Department, RIDE 18-098A and DCYF v. Pawtucket, 18-100K.
[7] DCYF v. North Providence School Department and DCYF v. Pawtucket, supra.
[8] Rhode Island has its own version of Section 504 - R.I. Gen. Laws §42-87-1 et seq. "Civil Rights Of People With Disabilities". Under R.I. Gen. Laws §42-87-5 (c) the Rhode Island Department of Elementary and Secondary Education is empowered and directed to hear all complaints relating to violations of this chapter in the area of elementary and secondary education.
For the Commissioner,
Kathleen S. Murray
Hearing Officer
Date: November 5, 2019
Angélica Infante-Green,
Commissioner