STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, Petitioner
vs.
FOSTER-GLOCESTER REGIONAL SCHOOL DEPARTMENT, Respondent
In re E. Doe
RIDE No. 19-050P(A)
DECISION AND ORDER
Held: Petition of state child welfare agency for order to compel school district to accept financial responsibility for a portion of the cost of educating a child in its custody who it placed in a residential treatment facility that provided educational services is granted, affirming prior holdings that Commissioner lacked jurisdiction to change psychiatric placement by child welfare agency sanctioned by Family Court, and/or to adjudicate school district’s claim that the non-educational placement violated the student’s rights under the federal Individuals with Disabilities Education Act.
Date: November 21, 2022
This is yet another claim against a local school district by the Department of Children, Youth and Families (“DCYF”) seeking monetary reimbursement for a portion of the cost of educating a child in DCYF’s care who was placed in a residential treatment facility that provided educational services. Here, the Foster-Glocester Regional School Department (the “FGRSD”) has defended its refusal to reimburse DCYF as mandated under R.I. Gen. Laws § 16-64-1.1(c) by claiming that DCYF, which had been granted placement discretion by the Family Court, violated its obligation to place the child in the least restrictive environment when it placed the child in a pediatric psychiatric hospital due to high-risk behaviors – including allegedly placing bleach in her younger sibling’s beverage – rather than in the public school setting recommended in an individualized education program (an “IEP”).
As will be discussed, the fact that the FGRSD – which had not reviewed any medical records or clinical evaluations pertaining to Doe during the relevant period (and was not even qualified to do so), and which at no time petitioned the Family Court to be heard on the matter – may not agree with a non-educational placement made by the child welfare agency authorized by the Family Court to make such placement decisions, is not a defense to non-payment under § 16-64-1.1(c), as has been made clear by the Commissioner on any number of occasions.
I. Procedural History, Jurisdiction and Standard of Review
On May 15, 2019, DCYF filed a petition requesting that the Commissioner enter an order to compel the FGRSD to accept responsibility and contribute financially to the cost of educating Student E. Doe (“Doe”), a fourteen-year-old girl in the temporary custody of DCYF who had been placed by DCYF at St. Mary’s Home for Children (“St. Mary’s”) in North Providence, Rhode Island.
An evidentiary hearing was conducted by former Hearing Officer Paul Pontarelli on October 7 and October 18, 2019, but no decision was rendered prior to Hearing Officer Pontarelli’s departure from the agency in November of that year. As a result, the Commissioner assigned the matter to the undersigned Hearing Officer who read all pleadings and memoranda, the transcript of the hearing, and all the documents that had been entered into evidence. A proposal for decision was then served upon the parties, who were provided with an opportunity to file exceptions and present supplemental briefs and oral argument pursuant to the state’s Administrative Procedures Act. See R.I. Gen. Laws § 42-35-11.
The Commissioner has subject matter jurisdiction under, inter alia, R.I. Gen. Laws § 16-64-1.1, and DCYF has the burden of proof by a fair preponderance of the evidence.[1]
II. Facts
The following facts were deduced from the transcripts of the hearing held on October 7 and October 18, 2019 before former Hearing Officer Pontarelli (the “Oct. 7 Tr.” and “Oct. 18 Tr.,” respectively), as well as the documents that were entered into evidence at the hearing.
The parties agreed that at all relevant times, Doe’s mother resided in Chepachet, Rhode Island, which is within the FGRSD. (Oct. 7 Tr. at 12).[2]
On January 31, 2019, Doe was admitted into Bradley Hospital, a pediatric psychiatric hospital, due to high-risk behaviors, including allegedly placing bleach in her younger sibling’s beverage. (Oct. 7 Tr. at 16; Oct. 18 Tr. at 104).
On February 1, 2019, the Family Court entered an order placing Doe into the temporary custody of DCYF. (DCYF Ex. 4).
The discharge plan for Doe prepared by Bradley Hospital in February of 2019 recommended that she be placed at St. Mary’s in an acute residential services program (Oct. 7 Tr. at 14, 28, 62), and the DCYF placement team concluded that Doe was in need of “intensive therapy.” (Id. at 33-34).
On February 13, 2019, Doe was placed by DCYF at a hospital step-down program at St. Mary’s (“St. Mary’s ARTS”) (Oct. 7 Tr. at 14, DCYF Ex. 2). According to the DCYF Social Case Worker, DCYF attempted to place Doe in a less restrictive environment, but was turned down at several places which all concluded that she needed “more clinical care and treatment” than they could provide. (Oct. 7 Tr. at 19-20, 33-34).
On March 19, 2019, DCYF provided the FGRSD with a formal Notice of Responsibility for a Child in State Care with respect to Doe. (DCYF Ex. 7 at pp. 3-4).
At that time, the IEP that had been prepared for Doe by the FGRSD – with effective dates June 13, 2018 to June 12, 2019 – provided that Doe could be educated in a public school setting. (Oct.18 Tr. at 98; FGRSD Ex. 2).
On or about March 21, 2019, the FGRSD denied any financial responsibility for the cost of educating Doe and informed DCYF that FGRSD “can successfully implement an IEP in the least restrictive and current educational setting.” (DCYF Ex. 7 at p. 4).
On April 2, 2019, Doe was transferred from St. Mary’s ARTS to a program at St. Mary’s where she received educational services. (Oct. 7 Tr. at 15; DCYF Ex. 6 at 2).
On May 10, 2019, the Family Court found that Doe was dependent and placed her into DCYF custody (DCYF Ex. 5).[3] The Decree also provided, inter alia, that “the child may not be returned home safely” and that DCYF was afforded “discretion for visitation and placement.” (Id. at ¶¶ 4-5).
St. Mary’s provided educational services to Doe during the period April 3, 2019 to August 27, 2019. (Oct. 7 Tr. at 30).
On June 3, 2019, an IEP meeting was held at St. Mary’s attended by, inter alia, Doe’s DCYF social worker and a representative from the FGRSD. (FGRSD Ex. 1). When asked why Doe could not have received educational services in a public school setting, which had been requested by Doe’s mother and advocated by the FGRSD, Doe’s DCYF social worker testified that the decision was up to the clinical staff at St. Mary’s, and although DYCF was “working towards reunification,” Doe had not yet been cleared to return to live with the siblings.” (Oct. 7 Tr. at 43-44).
Although the FGRSD claimed it was capable of educating Doe “in a public school setting,” it also admitted that it had not reviewed any psychiatric records or clinical evaluations pertaining to Doe during the period March 19 to June 3, 2019, and at no time petitioned the Family Court to be heard on the matter. (Oct. 18 Tr. at 166-167).
As of March 19, 2019, the annual per pupil special education rate for the towns of Foster and Glocester was $53,071, or $145.40 per day. (DCYF Ex. 7 at 3).
III. Positions of the Parties
1. DCYF
DCYF argued that this case was no different from the many other similar reimbursement cases against local school districts that had been decided in its favor by the Commissioner. See DCYF’s July, 2020 Reply Memorandum of Law at p. 5.[4] In this case, DCYF argued that it had met its burden of proof and was entitled to monetary reimbursement from the FGRSD pursuant to § 16-64-1.1(c) by establishing that: (a) DCYF had custody of Doe; (b) DCYF placed Doe in a residential treatment facility, i.e., St. Mary’s, which provided educational services to Doe during the period April 3, 2019 to August 27, 2019; and (c) at the time of placement, Doe’s custodial parent resided in Chepachet, Rhode Island, which is within the FGRSD. Therefore, DCYF concluded that it was entitled to reimbursement from the FRGSD at the District’s annual special education per-pupil rate for the period April 3, 2019 to August 27, 2019. Yet, the FRGSD wrongfully refused payment, despite due demand. See generally DCYF’s November 14, 2019 Memorandum of Law.
2. The FGRSD
The FGRSD argued that although Doe was at all relevant times a resident of the District, it was not liable for any portion of the cost of the educational services provided to Doe while she was at St. Mary’s since:
This case “differs from every educational funding case decided by the Commissioner thus far because DCYF has no Family Court fig leaf behind which to hide” as the Family Court “did not specify a particular placement or even a type of placement for [Doe]” and “no Family Court judge sanctioned DCYF’s conduct.” See FGRSD’s June 5, 2020 Memorandum (the “FGRSD Mem.”) at 2, 4;
Doe’s IEP “mandated that she be educated in the least restrictive environment of a public school,” but “[r]ather than exercising the discretion afforded by the Family Court to place [Doe] educationally pursuant to her IEP, DCYF abused its discretion and substituted its judgment for the IEP team.” See id. at 7;
“There was no clinical reason to place [Doe] at St. Mary's; no clinician familiar with [Doe] had ever recommended [Doe] attend school anywhere other than Ponaganset Middle School.” Id. at 6, citing Oct. 18 Tr. at 92; and
By placing Doe at St. Mary’s, DCYF failed to place her in the least restrictive environment, and thus failed to provide her with a free, appropriate, public education (a “FAPE”) in violation of the federal Individuals with Disabilities Education Act (the “IDEA”). See id. at 9-13.
IV. Decision
R.I. Gen. Laws § 16-64-1.1(c) provides that:
[c]hildren placed by DCYF in a residential treatment program, group home, or other residential facility, whether or not located in the state of Rhode Island, which includes the delivery of educational services, provided by that facility (excluding facilities where students are taught on grounds for periods of time by teaching staff provided by the school district in which the facility is located), shall have the cost of their education paid for as provided for in subsection (d) of this section and § 16-64-1.2. The city or town determined to be responsible to DCYF for a per-pupil special education cost pursuant to § 16-64-1.2 shall pay its share of the cost of educational services to DCYF or to the facility providing educational services.
Id. (emphasis added).[5] And § 16-64-1.2 makes clear that the residency of the child’s parent determines “the city or town to be responsible for the per-pupil special education cost of education to be paid to DCYF or to the facility providing educational services for children in state care pursuant to section 16-64-1.1(c).” Id. at (b).
Here, the FGRSD concedes that Doe was a resident in the District at all relevant times. See § II, ¶ 1, supra at p. 3. Therefore, according to the plain language of the relevant statutes, the FGRSD should be liable to DCYF for a portion of the cost of educating Doe while she was at St. Mary’s during the period April 3, 2019 through August 27, 2019, calculated at the towns’ annual per-pupil special education rate, which was $53,071 (or 145.40 per day) as of March 19, 2019. See § II, ¶ 14, supra at 6.
Little time need be spent addressing the arguments proffered by the FGRSD since, contrary to its repeated claim, the very same arguments have been considered and rejected by the Commissioner several times. See, e.g., DCYF v. Foster-Glocester Regional School Committee, RIDE No. 021-15 (December 15, 2015) and DCYF v. FGRSD, RIDE No. 009-14 (July 7, 2014).[6] The Commissioner has made clear that non-educational placements made for the safety of children are within the exclusive original jurisdiction of the Family Court,[7] and in an earlier case involving the FGRSD, the Commissioner reaffirmed the following principles:
(1) the Commissioner of Education has jurisdiction over disputes arising under §16-64-1.1; (2) in deciding those disputes, the Commissioner will not review or re-examine a decision of the Family Court; (3) the school district's arguments with regard to FAPE and [least restrictive environment] in a §16-64-1.1 case are to be considered only as they relate to the issue of educational and financial responsibility of the student; and (4) to ensure that children in DCYF custody do not lose their entitlement to FAPE, the school district of residence must raise any questions in this regard with the Family Court and RIDE's Office of Student, Community and Academic Supports.
DCYF v. Foster-Glocester Regional School Committee, RIDE No. 021-15 (December 15, 2015) at pp. 8-9.[8] The Commissioner went on to make clear that a school district’s “election to eschew appropriate measures to vindicate what it construes as [a student’s] right to a FAPE” does not somehow authorize the Commissioner to “ignore applicable federal and state law and adjudicate the claim,” and “is not an effective defense to DCYF’s statutory claim for reimbursement.” Id. at 10.
The FRGSD’s claim that this case “differs from every educational funding case decided by the Commissioner,” see FGRSD Mem., at 2, is belied by the facts.[9] Thus:
although the FGRSD claimed that “no Family Court judge sanctioned DCYF's conduct,” id. at 2, in fact, both the February 1, 2019 Family Court Order of Temporary Custody (DCYF Ex. 4) and the Court’s May 10, 2019 Decree (DCYF Ex. 5) expressly afforded DCYF with the discretion necessary to make the placement at St. Mary’s,[10] and the Court was expressly advised of the placement on March 18, 2019. See DCYF Ex. 6;
although the FGRSD claimed that “no clinician familiar with [Doe] had ever recommended [Doe] attend school anywhere other than Ponaganset Middle School,” id. at 6, citing Oct. 18. Tr. 92, in fact, the citation to the Oct. 18 Tr. only evidences that Doe’s mother does not recall that anyone from Bradley Hospital recommended that Doe not attend Ponaganset Middle School in meetings she attended with DCYF, not that the recommendation was never made. Indeed, the unrefuted testimony of Doe’s DCYF social worker established that: (i) the discharge plan for Doe prepared by Bradley Hospital recommended that she be placed at St. Mary’s; (ii) according to the DCYF placement team, Doe needed “intensive therapy”; and (iii) DCYF attempted to place Doe at a less restrictive environment, but was turned down at several places which all concluded that she needed “more clinical care and treatment” than they could provide. See § II, ¶¶ 4-5 supra, at p. 4.[11]
In short, FGRSD’s overblown rhetoric notwithstanding, the issues raised by the FGRSD in this case have been resolved, and the rationale applied by the Commissioner in DCYF v. Foster-Glocester Regional School Committee, RIDE No. 021-15 (December 15, 2015) (discussed supra at pp. 8-9) and similar cases is equally applicable here.
IV. Order
For all the above reasons:
DCYF’s Petition in the above matter is hereby granted;
The FGRSD shall reimburse DCYF for a portion of the cost of the educational services provided to Doe while at St. Mary’s Home for Children during the period April 3, 2019 to August 27, 2019 based upon the annual per pupil special education rate for the Towns of Foster and Glocester of $53,071 (or $145.40 per day);
The parties shall within twenty (20) days of the date hereof, or before the close of business on December 12, 2022, meet and in good faith attempt to agree upon the specific amount owing pursuant to ¶ 2, above, as well as the date it will be paid, and then file a Stipulation with the undersigned Hearing Officer confirming said agreement; and
In the event that the parties are unable to agree as to the amount and time of payment as per ¶ 3, above, the Commissioner shall, after notice to the parties, enter an order requesting that the state’s General Treasurer withhold an appropriate amount from the school aid to be paid to the Towns of Foster and Glocester or to its Regional School Committee.
Footnotes
[1] 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.”).
[2] Although the parental rights of Doe’s father had not been terminated, his whereabouts were unknown. See Oct. 7 Tr. at 52, 54, 57.
[3] The allegations of dependency were admitted to by Doe’s mother. Under R.I. Gen. Laws § 14-1-3(6):
‘Dependent’ means any child who requires the protection and assistance of the court when his or her physical or mental health or welfare is harmed, or threatened with harm, due to the inability of the parent or guardian, through no fault of the parent or guardian, to provide the child with a minimum degree of care or proper supervision because of:
- The death or illness of a parent; or
- The special medical, educational, or social-service needs of the child which the parent is unable to provide.
Id.
[4] Citing DCYF v. FGRSD v. RIDE, RIDE No. 009A-14 (August 12, 2014); DCYF v. Foster-Glocester Regional School Committee, RIDE 021-15 (December 15, 2015); DCYF v. Pawtucket School Committee, RIDE 18-100K (September 6, 2019); DCYF v. North Providence School Department, RIDE No. 18-098A (July 8, 2019); DCYF s v. Newport School Department, RIDE No. 19-006A (March 8, 2019); and DCYF v. Burrillville School Department, RIDE No. 19-001K (October 21, 2019).
[5] RIGL § 16-64-1.1(d), which concerns placements where the “entire cost” of a student’s education is to be paid for by DCYF, is not applicable since it only applies if, inter alia, the treatment facility is operated by the state of Rhode Island, which is not the case with respect to St. Mary’s.
[6] See also cases cited at note 4, supra, at p. 5. .
[7] The Family Court has exclusive original jurisdiction “to hear and determine all petitions for guardianship of any child who has been placed in the care, custody, and control of the department for children, youth, and families pursuant to the provisions of chapter 1 of title 14 and chapter 11 of title 40,” R.I. Gen. Laws § 8-10-3(a), as well as “those matters relating to delinquent, wayward, dependent, neglected, or children with disabilities who by reason of any disability requires special education or treatment and other related services.” Id. The FGRSD’s claim that it would lack standing to intervene in any Family Court proceeding, while not dispositive of the issues here, is not supported by the one, factually inapposite, case relied upon. See FGRSD Reply Mem., at 3, note 1, citing Almeida v. Almeida, 670 A.2d 1258 (R.I. 1996) (per curiam). In that case, “Killingly Public Schools” – whose existence as a legal entity the Court deemed “highly questionable,” see 670 A.2d at 1259, note 1 – sought to intervene in a divorce proceeding to press a motion to modify a confidentiality order concerning “the written psychiatric, psychological, and counseling reports of [the husband] and of the two minor children.” Id. at 1259.
[8] Quoting DCYF v. Foster-Glocester Regional School District v. RIDE, RIDE No. 009-14 (July 7, 2014) and citing In re Residency of Student C.M. Doe, RIDE No. 023-13 (September 27, 2013).
[9] Indeed, considering the clear prior holdings of the Commissioner on the very issues raised by FGRSD, an award of attorney’s fees would be appropriate but for the fact that the statutory source of the Commissioner’s authority to award such fees, i.e., the Equal Access to Justice Act, R.I. Gen Laws § 42-92-1, et seq., does not contemplate such an award in a case brought by a state agency against a local school district. See Student H. Doe v. Chariho Regional School Committee, RIDE No. 016-16 and Narragansett School System v. Chariho Regional School District, RIDE No. 18-070A (Consolidated), Supplemental Decision Granting, in Part, and Denying, in Part, Respondent’s Motion for Reconsideration and its Objection to any Award of Fees or Costs at pp. 13-17 (December 19, 2018).
[10] The February 1 Order granted DCYF the authority:
[t]o execute any and all documents evidencing informed consent to . . . admission to facility under the State’s Mental Health law as if executed by a ‘guardian’ as defined in R.I.G.L. 40.1-5-6 for the care, treatment and diagnosis of said child pursuant to the State’s Mental Health Law . . .
DCYF Ex. 4 at ¶ 4. And, as noted, the May 10 Decree expressly provided that “the child may not be returned home safely” and that DCYF was afforded “discretion for visitation and placement.” DCYF Ex. 5 at ¶¶ 4-5 (emphasis added).
[11] In addition, the FGRSD’s claim that the Commissioner should, sua sponte, initiate a due process complaint on behalf of Doe under the IDEA betrays a fundamental lack of understanding of both the original jurisdiction of the Family Court, see note 7, supra, and the mandatory procedures governing due process complaints. See, e.g., Regulations Governing the Education of Children with Disabilities, 200-RICR-20-30-6.8.1 and 34 CFR § 300.511 (Due process hearing officer “[m]ust not be . . .[a]n employee of the SEA or the LEA that is involved in the education or care of the child”). And finally, contrary to the FGRSD’s repeated citation to Newport Sch. Comm. v. RIDE, C.A. No. PC-2019-5968 (Super. Ct., Feb. 11, 2020) (Vogel, J.), see, e.g., the FGRSD’s June 5 Mem. at 8, note 6 and August 25 Reply Mem. at 2, the holding in that case, which concerned the admission of hearsay evidence, is simply not relevant.
Anthony F. Cottone, Esq.,
as Hearing Officer for the Commissioner
Angélica Infante-Green,
Commissioner of Education
Date: November 21, 2022