Department of Children, Youth and Families v. Burrillville School Department (In Re: Student S. Doe)

DECISION

Held: The Commissioner affirms precedent in prior cases that DCYF is statutorily entitled to be reimbursed at a per pupil special education rate for students placed in certain residential facilities for mental health treatment, even when they are not receiving special education services. There is no evidence that DCYF’s cost for placement of this student was reduced when the child was not present at the Vermont facility and was visiting Rhode Island on a pass, and so Burrillville’s position that it should not be required to provide DCYF with reimbursement for this three-day period of time lacks merit. Therefore, Burrillville is required to reimburse DCYF for a portion of the cost of educational services provided to S. Doe during the time she was placed at the Bennington School.

Date: February 12, 2020

Travel of the Case:

On May 17, 2019 DCYF filed a “Request For An Interim Order For Residency Determination And Designation Of Party Responsible For The Education Of A Youth Residing In A Residential Facility” (the “Petition”) with the Commissioner. According to the Petition, S. Doe was a foster child in state care and had been placed at the direction of the Family Court at the Vermont Permanency Initiative in Bennington, Vermont, (“Bennington School”) from October 31, 2016 to June 27, 2018. DCYF alleged in the Petition that it had unsuccessfully sought statutory reimbursement from the Burrillville School Department (“Burrillville”) based on the residency of the child’s adoptive mother in this town during the relevant period. The matter was assigned and scheduled for hearing on a date agreed to by counsel for the parties.

The case was initially heard on July 25, 2019 at which time testimony was taken and documentary evidence was received into the record. Thereafter, the parties supplemented the factual record with additional facts by Stipulation dated September 9, 2019 and filed with the hearing officer on October 2, 2019. Closing briefs were also submitted and the record in the case closed on November 25, 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 Burrillville School Department responsible for payment of it per pupil special education cost as reimbursement to DCYF for a foster child placed at the Bennington School when the child has not been determined to be eligible for special education and related services and has not received such services?
• Is the Burrillville School Department required to reimburse DCYF for three (3) days when S. Doe was on a pass from the Bennington School to Rhode Island?

Findings of Relevant Facts:

• S. Doe was placed at the Bennington School, a residential treatment facility located in Bennington, Vermont, from October 31, 2016 to June 27, 2018, for a total of 243 days in fiscal year 2017 and 362 days in fiscal year 2018. She received educational services during this time period, with the exception of three (3) days when she was on a pass to Rhode Island. Stipulation of Fact dated September 9, 2019.
• From October 31, 2016 up to June 21, 2018 S. Doe’s adoptive mother resided in Burrillville, Rhode Island. On June 22, 2018 she took up residency in the town of North Smithfield, Rhode Island. DCYF Ex. 5; Tr. p. 48-49.
• Burrillville’s daily special education rate for fiscal year 2017 was $106.18 per day; its daily regular education rate for fiscal year 2017 was $40.63. Stipulation of Fact dated September 9, 2019.
• Burrillville’s daily special education rate for fiscal year 2018 was $112.61 per day; its daily regular education rate for fiscal year 2018 was $42.77 per day. Stipulation of Fact dated September 9, 2019.
• Although S. Doe had a 504 Plan developed for her by Burrillville on October 17, 2016 (DCYF Ex. 11; Tr. p. 41) she was not a child with a disability eligible for special education and related services and she did not receive special education services at the Bennington School. Tr. pp.69; 72-73.
• Burrillville has paid $18, 173.03 to date directly to Bennington on behalf of S. Doe. Stipulation of Fact dated September 9, 2019.

Positions of the Parties:

Burrillville School Department:

As a threshold issue, counsel for Burrillville disputes the existence of “binding precedent” on DCYF’s entitlement to reimbursement at a per pupil special education rate for students who are not entitled to, and as in this case, did not receive special education services at the residential facility. He submits that the Commissioner, as the head of an administrative agency, can always reconsider her agency’s position provided that she gives a reasoned explanation for doing so. Counsel re-asserts his arguments that requiring cities and towns to pay the per pupil special education cost for nonspecial education students (1) is inconsistent with R.I. Gen. Laws §16-64-1.1, (2) violates Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and (3) violates the Individuals with Disabilities Education Act, 20 U.S.C. §§1400, et seq. Burrillville raises these issues here solely to establish that the Commissioner unambiguously endorses her predecessor’s interpretations of school law and to preserve the administrative record for further review, either on appeal or before the United States Department of Education.

A second argument is based on a fact that came to light after DCYF’s compliance with Burrillville’s request that DCYF re-examine its records on S. Doe’s attendance at the Bennington School. Information from such records indicates that Doe was “on a pass to Rhode Island” for a three (3) day period and that “with the exception” of these three days she received educational services from the Bennington School during the period October 31, 2016 to June 27, 2018. Counsel submits that DCYF cannot require local educational agencies such as Burrillville to pay for days when Doe was not a student, never mind the fact that she was never a special education student. There is no statutory basis on which to charge local educational agencies for any educational services that are not actually rendered. If a child is not at the residential facility, there is no “delivery of educational services” or “providing educational services”. There is ALSO no “cost of education” because no education, special or otherwise, is being provided. Burrillville argues that allowing DCYF to charge local educational agencies when a student is not even present at a residential facility would erase what little accountability is left in this system of transferring resources from local educational agencies to the DCYF budget. The Commissioner should not reward DCYF for paying for the placements of children in residential facilities that the children are not actually attending. This would be inconsistent with her responsibility “[t]o promote maximum efficiency and economy in the delivery of elementary and secondary educational services in the state” R.I. Gen. Laws §16-60-4(14).

DCYF:

With respect to prior decisions imposing a requirement that “responsible LEA’s” reimburse DCYF at a rate equal to their special education per pupil cost, DCYF argues that the Commissioner has no reason to reject sound precedent established in DCYF v. Newport School Department, RIDE No. 19-006A (a decision of her predecessor) and her own decisions in DCYF v. Cumberland School Department, RIDE No. 19-034A; DCYF v. North Providence School Department, RIDE No. 18-098A; DCYF v. Pawtucket School Department, RIDE No. 18-100K; DCYF v. Pawtucket School Department, RIDE No. 19-047A; DCYF v. Pawtucket School Department, RIDE No. 19-032K. DCYF submits that these decisions are well-reasoned and constitute correct applications of state education law. Defenses to payment that have been based upon purported violations of the IDEA, Section 504 of the Rehabilitation Act of 1973 and R.I. Gen. Laws §16-24-1 and state-level Regulations have been addressed and rejected in these same series of cases at the Commissioner’s level.

The fact that Doe received a pass^[2] for a three (3) day visit to Rhode Island has no effect whatsoever on Burrillville’s financial obligations in this matter, DCYF asserts. An LEA’s financial responsibility under R.I. Gen. Laws §16-64-1.1(c) clearly differs from that in other foster care situations, i.e. it is not based on “cost” of the child’s education or an obligation to “provide” the education itself, but rather to pay a “share” of the educational cost. The amount of that share is the LEA’s per pupil special education cost. Per pupil special education rates for school districts and LEA’s throughout the state are set on an annual basis and are calculated by dividing the city or town’s yearly special education (per pupil) rate by three hundred and sixty-five (365). In this case, the parties have performed these calculations and have stipulated as to the applicable “daily special education rate” and “daily regular education rate”. In all of the Commissioner’s decisions concerning application of R.I. Gen. Laws §16-64-1.1(c), the Commissioner has ordered that DCYF be reimbursed by calculating the number of days that the foster child is or was placed at the residential treatment facility (and multiplying) this by the city or town’s daily per pupil special education rate. The Commissioner should calculate Burrillville’s financial responsibility in this case just as the Commissioner has done in all of these other cases and should reject Burrillville’s attempt to define its financial responsibility with relation to the actual cost of S. Doe’s education at the Bennington School.

DECISION

According to Burrillville’s argument in this case, the Commissioner is not constrained to follow - and should not follow in this case - precedent established with respect to the interpretation of R.I. Gen. Laws §16-64-1.1(c). The Commissioner construed the language of §§ 16-64-1.1 and 16-64-1.2 in the case of DCYF v. Newport School Department^[3] to require districts to reimburse DCYF for the cost of educating children placed in private residential facilities at the district’s statutory special education per-pupil rate even if the child is a general education student who is not eligible to receive special education services. In Newport, supra, the Commissioner engaged in an extensive textual analysis and reviewed the legislative history of these statutory provisions in making this interpretation.^[4] Burrillville argues that a newly-appointed Commissioner has the prerogative to reject her predecessor’s interpretation of the statute, should she be of a different opinion as to its meaning “provided she gives a reasoned explanation for doing so”. (Burrillville Memorandum at page 3). Principles of administrative law cause us to conclude otherwise. When the Commissioner interprets a statute, she engages in “adjudicative rulemaking”. Such was the undertaking in DCYF v. Newport, supra, in which the Commissioner construed the reimbursement provisions of Title 16 Chapter 64 in light of substantially the same arguments presented in this case.^[5] In the context of adjudication, a presumption exists that an agency will adhere to its settled rule, and the agency must explain a departure from its prior norms. If there is no reason for a departure from the rule, the agency’s action will be viewed, and possibly overturned, as “arbitrary and capricious”. See Town of Burrillville v. Pascoag Apartment Associates, LLC, 950 A.2d 435, 451 (R.I. 2008) (in which the Rhode Island Supreme Court found the State Housing Appeals Board’s (“SHAB’s”) failure to follow its own definition of “substantial completeness” as set forth in its written decisions to be reversible error).

Thus, without a substantial reason^[6] to depart from the construction of §16-64-1.1(c) made in Newport, supra, there is a sound basis on which to affirm this “adjudicative rule” pursuant to principles of administrative law. This ruling is also hereby affirmed as a correct, well-reasoned interpretation of the statute, consistently applied in numerous other cases subsequently adjudicated in this forum.

Burrillville’s argument is that it cannot be required to reimburse DCYF for three (3) days on which Doe was not receiving educational services at Bennington because she was “on a pass to Rhode Island”. The fact that Doe was not at the Bennington School for this brief period of time does not warrant a conclusion that (1) DCYF’s per diem charges for Doe’s placement at Bennington were not payable for these three (3) days or that DCYF’s cost for Doe’s placement was reduced because Doe was not physically present for a three-day period of time. There is nothing in the record to suggest that DCYF’s contractual arrangement with the Bennington School was such that an absence of three (3) days relieved DCYF from its obligation to pay Bennington’s per diem rate. To the contrary, a document admitted into evidence would suggest^[7] that DCYF’s funding for “temporary vacancies” would continue even during a three-day absence from the program. ( See DCYF Ex. 1, letter dated October 13, 2016 to the “Vermont Permanency Initiative” (otherwise known as the Bennington School) from Christy E. Healey, Acting Deputy Director of DCYF). Although Burrillville asserts that “there is no cost of education” (for which DCYF is entitled to reimbursement) “because no education, special or otherwise, is being provided”. See Burrillville Memorandum at page 3) the record does not support any conclusion that Bennington’s charges were eliminated or reduced during this brief period of Doe’s absence.

As DCYF correctly points out, an LEA’s statutory responsibility is framed in terms of a “contribution” to the cost of a child’s education during the period of time he or she is placed at a residential treatment facility. In obligating LEA’s to pay only a portion or a “share” of a child’s educational cost and in further defining this share to be the LEA’s “per pupil special education cost” the law does not couple reimbursement with “cost” (either total or educational) that DCYF incurs in the child’s residential placement. Also, as DCYF has noted, the Commissioner has in all prior reimbursement cases calculated the total number of days that the child has been placed at the residential facility and multiplied this number by the city or town’s daily per pupil special education cost. Burrillville has not justified its claim that its statutory contribution to Doe’s education at Bennington is not required for the three days that Doe was in Rhode Island on an approved absence. While there may be situations in which a child’s absence (long-term or otherwise) from a residential treatment facility results in the elimination of DCYF’s contractual obligation to the facility, the record does not indicate that such is the case here. There is no basis on which to relieve Burrillville of its obligation to reimburse DCYF for this three-day period of time.

For the foregoing reasons, DCYF’s Petition is hereby granted in part. Burrillville is directed to reimburse DCYF in the amount of $47,830.48 forthwith. If payment is not made within a reasonable timeframe, DCYF must notify the Commissioner of the need for an Order to the General Treasurer and such request will be considered at that time.

Footnotes

[1] It became clear at the time of hearing that, technically, this dispute did not involve a “dispute over residency” because the basis for Burrillville’s refusal to pay its per pupil special education cost to either DCYF or the Bennington School was based on Burrillville’s interpretation of the statute as limiting DCYF’s claim for this student to its per pupil general education cost. As the hearing unfolded and facts related to S. Doe’s receipt of a pass authorizing her three-day absence from Bennington became available, this also became a basis asserted FOR reducing DCYF’s statutory claim.

[2] Although DCYF’s memorandum refers to “passes” enabling Doe to leave the Bennington School to travel to Rhode Island, we infer from the parties’ Stipulation that there was a single pass covering a three-day visit to Rhode Island.

[3] RIDE No. 19-006A

[4] The Commissioner is authorized not only to decide educational controversies but also “to interpret school law”. See R.I. Gen. Laws §16-60-6(9) (viii).

[5] The Commissioner observed that the relevant statutory language was hardly a “model of clarity” and assumed “for present purposes” that the language was ambiguous, such that a review of the legislative history would be appropriate. See Newport, supra, at page 10.

[6] A new Commissioner’s mere difference of opinion would not validate a departure from a well-reasoned administrative decision interpreting a significant provision of education law. The inference we take from a review of the case cited by Burrillville, Motor Vehicle Mfrs. Assoc. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983) is that a “reasoned analysis” for changing a rule (in this case a rule of conduct, rather than an interpretive rule) must be supplied and that it must result from an examination of relevant factors and articulate a “satisfactory explanation” for the agency’s action.

[7] The record suggests this fact. Documentation attached to DCYF’s Petition was not admitted for the truth of the matter asserted and so additional proof would be required for us to make this a finding of fact.

For the Commissioner,

Kathleen S. Murray

Hearing Officer

Date: February 12, 2020

Angélica Infante-Green,

Commissioner