Department of Children, Youth and Families v. Pawtucket School Department, In re Student C. Doe

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

COMMISSIONER OF EDUCATION

DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, Petitioner

vs.

PAWTUCKET SCHOOL DEPARTMENT, Respondent

In re Student C. Doe

RIDE No. 19-047 A

DECISION AND ORDER

Held: DCYF’s petition for reimbursement was granted since school district willfully failed to comply with clear, prior holdings of the Commissioner establishing that districts are statutorily required to reimburse DCYF for a portion of the cost of the educational services provided to children in their custody at private residential facilities at the district’s statutory per pupil special education rate, even if the child is not a student with a disability entitled to special education services.

Date: November 5, 2019

On or about January 25, 2019, Petitioner, Department of Children, Youth and Families (“DCYF”), filed yet another Request for a Residency Determination and Designation of Party Responsible for the Education of a Youth Residing in a Residential Facility (the “Petition”) seeking an order from the Commissioner compelling Respondent, Pawtucket School Department (“PSD”), to reimburse it for the statutorily-mandated portion of the cost of educating a child in DCYF custody who it had placed in a private residential facility.^[1]

The Commissioner is required by statute “to interpret school law,” RIGL §§ 16-1-5(10) and 16-60-6(9)(viii), and to “require the observance” and “enforce the provisions of all laws relating to elementary and secondary education.” RIGL §§ 16-1-5(9) and 16-60-6(9)(vii). Thus, she has subject matter jurisdiction here, and DCYF has standing, under RIGL §§ 16-64-1.2, 16-64-1.3 and 42-72-5(24), as well as under either RIGL § 16-39-1, which covers disputes “arising under any law relating to schools or education,” or § 16-39-2, which concerns appeals from the actions of school committees. And as in most proceedings before the Commissioner, the petitioner, in this case DCYF, has the burden of proof by a fair preponderance of the evidence.^[2]

I. Facts

The following facts are not in dispute:

1. Student C. Doe was eighteen (18) years old when the Petition in the above matter was filed by DCYF, and was seventeen (17) years of age when placed in DCYF custody, where she remained at all relevant times.

2. C. Doe’s legal guardian resided, at all relevant times, in Pawtucket, Rhode Island.

3. A written Notice of Responsibility for a Child in State Care as to C. Doe was provided to PSD by DCYF on or about July 10, 2018.

4. On or about August 23, 2018, C. Doe was placed by DCYF at the Pelham Academy (the “Academy”), a private residential facility located in Lexington, Massachusetts that provides educational services, and she resided at the Academy and received educational services at the facility for a total of two-hundred and fifty (250) days in Fiscal Year 2019, and thirty-one (31) days in Fiscal Year 2020 (as of August 26, 2019).

5. The statutory daily per pupil special education rate for PSD for Fiscal Year 2019 was $103.08, as compared to its daily per pupil general education rate of $39.82. According to DCYF, the statutory daily per pupil special and general education rates for PSD for Fiscal Year 2020 were not available.

7. Despite due demand, PSD has refused to reimburse DCYF for any portion of the amount that DCYF claims it is owed as of August 26, 2019 as reimbursement for the educational services provided to C. Doe at the Academy, and has not paid the Academy directly.

   The following facts, which were not stipulated to by the parties, were nonetheless supported by the testimony of DCYF’s Juvenile Probation Officer and PSD’s Assistant Superintendent at a September 25, 2019 hearing before the undersigned Hearing Officer, as well as by the August 2, 2018 Family Court placement order that was entered into evidence (without objection) immediately following the hearing:^[3]

8. C. Doe, who has been diagnosed with post-traumatic stress disorder (“PTSD”), was placed on probation on April 3, 2017.

9. The Family Court placement order dated August 2, 2018, DCYF Ex. 1, provided that C. Doe was to be transferred to the Academy as soon as a bed was available. Id.

10. C. Doe was not at any relevant time a child with a disability or eligible to receive special education services, and did not have a Section 504 Plan.^[4]

II. Positions of the Parties

1. DCYF’s Position

At the September 25, 2019 hearing and in its Memorandum of said date (the “DCYF Mem.”), DCYF relied upon the facts above and, citing to the Commissioner’s decisions in DCYF v. Newport School Department, RIDE No. 19-006 A (March 8, 2019) and subsequent cases, argued that PSD was legally required to reimburse it at PSD’s statutory rate for special education students for the 250 days that C. Doe received educational services at the Academy in Fiscal Year 2019, and the 31 days such services were provided in Fiscal Year 2020. See DCYF Mem. at 1-3.

In addition, DCYF claimed that PSD’s legal arguments based upon the federal Individuals with Disabilities Education Act (the “IDEA”) and/or Section 504 of the federal Rehabilitation Act of 1973 (“Section 504”) had been adequately addressed and rebutted by the Commissioner in Newport, supra, and subsequent decisions. See id. at 3-4, 6-7.

2. PSD’s Position

In its September 25, 2019 Memoranda (the “PSD Mem.”) (and earlier Objection dated September 16, 2019), PSD argued that:

1. the first sentence of R.I. Gen. Laws § 16-64-1.1(c) “establishes the general rule that local educational agencies are generally responsible for the ‘cost’ of education whereas the second sentence mandating application of the special education rate is limited to special education students. And as DCYF admits in this case, C. Doe is not a special education student. Consequently, the last sentence in section 16-64-1.1(c) is not applicable to Pawtucket because, by its own terms, it concerns only special education costs.” PSD Mem. at 12-13;
2. “The Commissioner's current interpretation [of R.I. Gen. Laws § 16-64-1.1] also runs afoul of Section 504 of the federal Rehabilitation Act which proscribes discrimination against disabled persons. 29 U.S.C. § 794(a)... By placing students who are ineligible for special education in residential facilities that provide on-site educational services and billing their home school districts the special education daily rate for their education, DCYF and the Commissioner, both of whom are the recipients of federal funds, are putting the imprimatur of the State of Rhode Island on children like C. Doe who have no disability. The State of Rhode Island thereby labels these children like C. Doe as special education students as a matter of law when DCYF has stipulated that C. Doe is not eligible for special education ... Thus, thanks to DCYF and the Commissioner but in contravention of Section 504, these children are perceived as though they have a disability and are treated differently because of it.” PSD Mem. at 14-15; and
3. the Academy is a more restrictive placement than any Pawtucket high school; the Academy is further down the special education continuum. See [Regulations Governing the Education of Children with Disabilities (the “Disability Regs.”), R.I. Regs. at 200-RICR-20-30-6.5.2]. Accordingly, educating C. Doe at the Academy, the more restrictive environment, violates her IEP and, therefore, does not afford her FAPE. PSD Mem. at 7.

III. Decision

On March 8, 2019, the Commissioner held that school districts are required to reimburse DCYF for the cost of educating children placed in private residential facilities at the district’s statutory special education per-pupil rate – which is higher than the general education rate – even if the child is a general education student who is not eligible to receive special education services. See Newport, supra (construing, inter alia, R.I. Gen. Laws § 16-64-1.1(c). And since March, the Commissioner has affirmed this holding in three (3) additional decisions, one of which involved the PSD as a Respondent. See DCYF v. Cumberland School Department, RIDE No. 19-034 A (May 21, 2019); DCYF v. North Providence School Department, RIDE No. 19- 098 A (July 8, 2019); and DCYF v. Pawtucket School Committee, RIDE No. 18-100 K (September 6, 2019). The Commissioner made clear in the prior case involving PSD that:

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. Pawtucket, supra, at 6.^[5]

As to PSD’s specific arguments here, the Commissioner has already considered and rejected a substantially similar variant of PSD’s textual argument that “the second sentence” of R.I. Gen. Laws § 16-64-1.1(c) mandates that “application of the special education rate [be]

limited to special education students.” See PSD September 25 Mem. at 11 and Newport, supra at

10. Without repeating the Commissioner’s entire statutory analysis in Newport supra, suffice it to note that the Commissioner held that PSD’s interpretation was “nowhere supported by the plain language of any of the arguably relevant statutory provisions.” Id. at 10. Moreover, the Commissioner held that the Legislature’s awareness of the two types of reimbursement rates,

“coupled with statutory amendments that remove any mention of the general education rate in §§

16-64-1.1, 16-64-1.2 and 16-64-1.3... more logically reflect[ed] the Legislature’s recognition that the actual cost of providing either general or special education services regularly exceeds even the higher special education per pupil rate.” Id.

In addition, PSD’s legal argument based upon Section 504, see PSD Mem. at 14-15, also has been squarely rejected by the Commissioner. See Pawtucket, supra at 6 (“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”) and North Providence, supra at 6 (“absolutely no evidence to support the NPSD’s claim that the utilization of the statutorily-mandated rate of reimbursement somehow ‘labels’ children as ‘disabled’ or in any way impacts placement decisions or the type of educational services that are provided.”).

PSD argues that in Pawtucket, supra, the Commissioner “demonstrated her misunderstanding of the ‘regarded as’ prong of Section 504 by focusing on the fact that there was no evidence of discrimination...” See PSD Mem. at 15 and note 5, citing Hillton v. Wright, 673 F. 3d 120, 129 (2d Cir. 2012). Yet, none of the cases cited by the PSD in support of this argument are relevant here since they all concerned allegedly discriminatory action against an individual.^[6] Here, by contrast – as in Pawtucket, supra, and North Providence, supra– there has been absolutely no evidence to support PSD’s bald claim that C. Doe was somehow “labeled” as being “disabled,” or described any discriminatory action of any kind. In fact, PSD failed to even explain how the application of an after-the-fact statutory reimbursement formula could have in any way impacted a non-educational placement decision made by the Family Court, or the type of educational services that C. Doe was provided.

And little time need be spent addressing PSD’s argument that “the Academy is a more restrictive placement than any Pawtucket High School,” and the placement thus “violates her IEP,” PSD September 25 Mem. at 7. Indeed, under the circumstances the argument is nonsensical since by PSD’s own admission, “C. Doe was not at any relevant time a child with a disability or eligible to receive special education services, and did not have a Section 504 Plan.” See supra at § I (10) at 4 and note 4. Nor, according to PSD’s own Assistant Superintendent, did C. Doe ever have an IEP. Thus, the IDEA and/or the cited provisions in the Disability Regs. relating to least restrictive environments, and the numerous cases cited by PSD in that connection, simply do not apply.^[7]

Finally, it should be noted that the procedural backdrop and pre-hearing e-mails with counsel are described in unusual detail, see note 5, supra, in order to emphasize the unnecessary waste of time and money that can result from a school district’s willful refusal to promptly comply with clear and binding legal precedent in the absence of any even rational legal argument in support. In the future, such willful refusal will be met with some appropriate corrective action, whether against the responsible school district official, the school district’s attorney, or both.

V. Order

For all of the above reasons:

1. DCYF’s Petition in the above matter is hereby granted;
2. PSD shall reimburse DCYF for the cost of the educational services provided to C. Doe for the two-hundred and fifty (250) days he received such services at the Academy during Fiscal Year 2019 at PSD’s daily per pupil special education rate of $103.08, for a total during Fiscal Year 2019 of twenty-five thousand, seven hundred and seventy dollars ($25,770);
3. The parties shall within thirty (30) days of the date hereof, or before the close of business on October __, 2019, meet and in good faith attempt to agree upon: (a) the amount owing with respect to the thirty-one (31) days that C. Doe received educational services at the Academy during Fiscal Year 2020, through August 26, 2019, assuming that the parties are advised as to the PSD’s per pupil special education rate for 2020; and (b) any additional amounts owed DCYF at the PSD’s per pupil special education rate with respect to the education services provided C. Doe during the period August 26, 2019 to the present; and
4. In the event that the PSD does not within thirty (30) days of the date of this decision either: (a) reimburse DCYF in the amount of $25,770, as per ¶ 2, above; or (b) reimburse DCYF for the amount owed during FY 2020 at its special education rate; or (c) enter into a stipulation with DCYF that provides an agreed-upon reimbursement schedule, the Commissioner shall, after notice to the parties, enter an order requesting that the state’s General Treasurer withhold a minimum of $25,770 from the state education aid to be paid to PSD, plus whatever additional amounts may be appropriate.

Footnotes

[1] Approximately thirty-two (32) similar cases are presently pending before the Commissioner.

[2] See Larue v. Registrar of Motor Vehicles, Dept. of Transp., 568 A.2d 755, 758-59 (R.I. 1990), citing Gorman v. University of Rhode Island, 837 F.2d 7, 15 (1st Cir.1988) (general presumption in administrative proceedings “favors the administrators” and places the burden of proof upon the party challenging the action “to produce evidence sufficient to rebut this presumption.”).

[3] PSD’s counsel declined the opportunity to call relevant witnesses and/or submit additional documents and/or legal memoranda in response to the post-hearing introduction of the Order.

[4] PSD took issue with paragraph 2 of DCYF’s proposed Second Amended Agreed Statement of Facts, which provided that “C. Doe, at all relevant times, has not been found eligible to receive special education services.” See PSD’s September 16, 2019 Objection (emphasis added). Instead, presumably in order to preserve its argument that C. Doe had been “mislabeled,” discussed at § II (2)(c) infra at 5, PSD requested a finding of fact that “C. Doe was not at any relevant time a child with a disability or eligible to receive special education services,” PSD’s September 16, 2019 Objection at 2 (emphasis added), a factual finding which, a noted, was supported by the evidence.

[5] Despite the clarity of these holdings, PSD continued to attempt to avoid and/or delay meeting its legal obligation by a strategy of delay and obfuscation. Here, for example, on April 18, 2019, four months after DCYF’s Petition had been filed and over a month after the decision in Newport, supra, the undersigned Hearing Officer wrote counsel for the parties and indicated that he had “prepared a form of Consent Order and Stipulation which may be an efficient way to handle the petition if there are no material factual issues in dispute and, as in other similar cases, the dispositive legal issue is the one decided recently by the Commissioner in [Newport, supra].” See 4/18/2019 e-mail from the Hearing Officer to counsel. In response, PSD’s counsel advised by e-mail the next day that “my client is still in the process of verifying C. Doe’s residence in Pawtucket. I hope to have that completed by midweek next week.” Id. And then on May 20, 2019, the Hearing Officer sent his own proposed Stipulation and Agreed Statement of Facts to counsel by e-mail based upon the allegations in DCYF’s Petition.

On May 21, 2019, the same day that the Commissioner affirmed the holding in Newport, supra (in Cumberland, supra), DCYF circulated a proposed Amended Statement of Facts, which merely added certain undisputed factual details to the proposed Agreed Statement, see 5/21/2019 e-mail from DCYF’s Counsel to Hearing Officer and PSD’s counsel, and counsel for PSD then advised that “[t]he parties are working on the statement of facts. A hearing is not necessary.” See 5/21/2019 e-mail from PPSD’s counsel to the Hearing Officer and DCYF’s counsel.

However, PSD’s counsel did not respond to DCYF’s proposed Stipulation and Amended Agreed Statement of Facts until August 26, 2019, when he advised by e-mail that: “Pawtucket objects and requests a hearing.” Id. (In the meantime, on July 8, 2019, the Commissioner rendered yet another decision in North Providence, supra, affirming the holding in Newport, supra). The Hearing Officer responded to PSD’s August 26, 2019 request for a hearing by advising that:

. . . before scheduling a hearing in these cases I have asked objecting districts to identify either: (1) a specific, genuine issue of material fact that is in dispute; or (2) a legal argument that has not already been made in the context of other similar cases. Please do so and we will then proceed accordingly.

8/26/2019 e-mail from Hearing Officer to counsel. On September 5, 2019, counsel for PSD advised that he will “file by Monday,” id., to which the Hearing Officer responded by stating:

That’s fine, but am I to assume that you will be filing a legal memo on Monday to preserve issues for appeal, or are you suggesting that there are material issues of fact that require an evidentiary hearing? If the latter, please specifically identify the material fact issue or issues.

9/5/2019 e-mail from Hearing Officer to counsel.

On September 11, 2019, DCYF requested that a Second Amended Agreed Statement of Facts, which was substantially the same as the prior version but for the inclusion of certain missing (but apparently undisputed) information, be entered into the record. See 9/11/2019 e-mail from DCYF’s counsel. PSD’s counsel responded by e-mail that same day, stating that “Pawtucket will be filing an objection within a week.” Id.

On September 6, 2019, the Commissioner, in a case in which PSD was the Respondent, decided her fourth decision affirming the holding in Newport, supra (in Pawtucket, supra). Then on September 16, 2019, DCYF’s counsel requested a hearing by e-mail, to which the Hearing Officer responded by noting that:

on August 26, I wrote counsel as follows:

. . . before scheduling a hearing in these cases I have asked objecting districts to identify either: (1) a specific, genuine issue of material fact that is in dispute; or (2) a legal argument that has not already been made in the context of other similar cases. Please do so and we will then proceed accordingly. Thanks. AFC

[PSD’s counsel] advised on September 11 that he will file his objection by this Wednesday, September 18, 2019, and so I will await his filing before scheduling a hearing.

9/16/2016 e-mail from Hearing Officer to counsel.

PSD then filed its Objection to DCYF’s Motion for a Decision on its Amended Statement of Facts (PSD’s September 16 Objection”) later that same day and, as has been discussed, objected to one of the proposed statements of fact and argued that the Commissioner’s interpretation of R.I. Gen. Laws 16-64-1.1(c) in Newport, supra and subsequent cases “violates Section 504 [of the Rehabilitation Act] by mislabeling children.” Id. at 2.

Since both of the parties requested an evidentiary hearing, such a hearing was held on September 25, 2019, and the parties each submitted additional legal memoranda at that time, as has been discussed.

[6] Thus, Hilton, supra, concerned a putative class action against the New York State Department of Correctional Services and its Chief Medical Officer by state prison inmates infected with Hepatitis C virus, who alleged deliberate indifference to serious medical needs in violation of Eighth Amendment, as well as violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act. See 673 F. 3d at 123-1124; see also Cook v. State of R.I. Dept. of Mental Health, Retardation, and Hospitals, 10 F.3d 17, 22 (1st Cir. 1993) (action by applicant for position of institutional attendant for the mentally retarded against employer alleging handicap discrimination due to employer's determination that she was “morbidly obese” in violation of Rehabilitation Act); Lawton v. Success Academy Charter Schools, Inc., 323 F. Supp. 3d 353, 363-64 (E.D.N.Y. 2018) (disability discrimination and retaliation action by five students with disabilities or perceived disabilities who struggled to comply with charter school's strict disciplinary code against school, former school principal, operator of system of charter schools, and six Doe defendants, asserting violations of the Rehabilitation Act, § 1983, and various state laws); and Hunt v. St. Peter’s School, 963 F. Supp. 843, 850 (W.D. Mo. 1997) (action by elementary school student against parochial school, alleging that school’s failure to accommodate her disability and its refusal to continue providing educational services to her based on that disability violated Rehabilitation Act).

[7] In addition, whether or not PSD had a right to be notified of the Family Court proceeding which resulted in the August 2, 2018 placement order – an issue which need not be decided here – is not relevant since although PSD’s counsel has made the blanket statement in his memoranda that PSD “has been ready, willing and able to educate C. Doe in a public school setting,” see PSD’s Mem. at 6, not one shred of evidence to that effect was introduced, and thus no showing was made that notice of the relevant Family Court proceeding would have made any difference.

Anthony F. Cottone, Esq.,

as Hearing Officer for the Commissioner

Angélica Infante-Green,

Date: November 5, 2019