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Special Education Law
DECISIONDistrict PrevailedRIDE Case No. 20-026K

S. Doe v. Beacon Charter School

December 18, 2020·Kathleen S. Murray·Beacon Charter

STATE OF RHODE ISLAND

COMMISSIONER OF EDUCATION

S. DOE

v.

BEACON CHARTER SCHOOL

20-026K

DECISION

The Beacon Charter School properly dis-enrolled Doe, a child with a disability, six months after his parents removed him from Beacon and unilaterally placed him at a residential school in Provo, Utah. After this dis-enrollment, Beacon was no longer Doe’s local educational agency responsible for his special education and related services. However, Doe remains a resident of Woonsocket, Rhode Island for school purposes and retains the right to receive a free appropriate public education (“FAPE”) from Woonsocket, as well as the right to receive “equitable services” pursuant to a services plan developed by the Provo, Utah school district. If Doe’s placement at the residential school in Utah is subsequently found to have been necessitated by Beacon’s failure to have provided him with FAPE, that fact will be relevant in determining any right Doe may have to re-enroll at Beacon should he no longer require a residential placement.

DATE: December 18, 2020

Travel of the Case:

On February 29, 2020 counsel for Mr. and Mrs. Doe filed a letter with Commissioner Angelica Infante-Green requesting a hearing to (1) direct Beacon Charter School (“Beacon”) to re-enroll Student Doe and (2) develop an IEP for him that would provide him with a free appropriate public education (a “FAPE”). The pandemic delayed the prompt scheduling of this matter for hearing, and in the interval counsel for the parties conferred to determine if this matter could be resolved without a hearing. During two pre-hearing conferences- one on April 23, 2020 and the other on April 30, 2020 the parties determined that a hearing would be necessary and, following implementation by the Commissioner’s office of a process for holding hearings virtually, the parties agreed to avail themselves of this option. Counsel for the parties then attempted to stipulate to relevant facts, but were not successful in doing so after exchanging proposed Statements of Fact in early June of 2020. Thereafter, an agreed-upon hearing date of July 27, 2020 was scheduled. The parties presented their evidence at that time via the Zoom platform, and submitted written closing arguments to the hearing officer on August 24, 2020, at which time the record in this case closed.

Jurisdiction to hear this dispute arises under R.I. Gen. Laws §16-77-5.1 which authorizes the Commissioner to hear and decide complaints concerning violations of law by Rhode Island charter schools pursuant to R.I. Gen. Laws §§16-39-1 and 16-39-2.[1] Neither of the parties has raised the issue of presentation of this complaint to Beacon’s governing body as a pre-condition to hearing by the Commissioner.

ISSUE:

Did Beacon Charter School continue to be Doe’s local educational agency (“LEA”) after his enrollment in a private residential school in Utah and, if so, until what point in time?[2]

Findings of Relevant Facts:

  • Student Doe is a child with a disability, eligible and qualified to receive special education and related services under the Individuals with Disabilities Education Act (the “IDEA”), 20 USC 1400, et seq. (Pet. Ex. 1); Stipulation Tr. p.16. In August of 2017 he enrolled at Beacon Charter School, in Woonsocket, Rhode Island where he resided (and continues to reside) with his parents. He turned eighteen (18) years of age on October 12, 2020. Tr. pp. 15- 18.
  • For some time Doe has struggled with work overload, social issues, isolation, and attempts at self-harm. Tr. p.21. An incident occurred at Beacon on December 17, 2018 when Doe attempted to hurt himself during science class by trying to swallow a snap hook clip. Pet. Ex. 20. On the advice of his therapist, Doe did not return to school but instead attended the Bradley School, a therapeutic day program at Bradley Hospital in East Providence, Rhode Island. He attended the Bradley School for a period of approximately six (6) weeks. Tr. pp. 21-24, 73-76.
  • Following his discharge from the Bradley School in late February of 2019, Doe’s parents sent him to a therapeutic wilderness program so that he could receive intensive, immersive therapy. His parents notified Beacon’s Director of Special Education that Doe would be leaving on March 4, 2019 for Vantage Point at Aspiro (“Aspiro”), a program located in the state of Utah. Pet. Ex. 5a and 5b.
  • On or about March 1, 2019 documentation was provided by Doe’s parent to Beacon’s Director of Special Education outlining the program that would be available to Doe upon his enrollment at Aspiro, his anticipated length of stay there and the identity of the treatment team at the facility along with their credentials. Pet. Ex. 15.
  • At various points during Doe’s stay at Aspiro, staff at Beacon communicated with Doe’s parents to request documentation with respect to the reason for Doe’s “time away from school” and to obtain discharge reports and recommendations generated from his time at the Bradley School, so that planning could take place for Doe’s eventual return to Beacon. Pet. Ex. 2a-2d and 14.[3] Toward the end of Doe’s stay at Aspiro, a document entitled “Progress Summary & Recommendations” dated May 6, 2019 was sent by a clinician there to the staff at Beacon. Pet. Ex. 23. Doe’s parents also forwarded to Beacon a letter dated May 16, 2019 from this same clinician at Aspiro containing recommendations for Doe’s educational placement. Tr. pp. 32-38; 44-49; Pet. Ex.24.
  • On May 29, 2019 Doe left Aspiro and was immediately transferred to the Spark Academy, part of the Heritage Community in Provo, Utah. Doe’s parents notified Beacon of Doe’s placement at the Spark Academy and provided staff at Beacon with a document containing an overview of the program there. Tr. pp. 49-52; Pet. Ex. 22.
  • On June 11, 2019, Beacon held an IEP meeting to conduct an annual review of Doe’s IEP; The IEP team recommended at that time that Doe be placed in a therapeutic day school. Beacon subsequently forwarded a packet of information containing Doe’s educational records to three potential day school placements.[4] Pet. Ex. 17-19; Tr. pp. 52-56. Thereafter, in mid-August, Doe’s parents toured two of the three day school programs that were recommended by Beacon. Doe remained enrolled and in attendance at the Spark Academy. Tr. p. 59.
  • Another IEP meeting on the issue of Doe’s placement was held at Beacon on October 11, 2019. Doe’s parents, staff at Beacon[5], Doe’s team at the Spark Academy and Doe’s neuropsychologist from Massachusetts General Hospital were in attendance.[6] According to notes of this meeting, the chair of the IEP team conveyed the recommendation of the team that Doe’s educational placement be changed to a therapeutic day program and noted that two therapeutic day programs had indicated that Doe would be an appropriate student for their programs. The team from the Spark Academy recommended that Doe remain at their facility in Utah. The parents were provided with prior written notice indicating that the team proposed an educational placement in a therapeutic day program in order to provide Doe with FAPE in the least restrictive environment. Pet. Ex. 25.[7]
  • Another IEP meeting was scheduled by Beacon for December 4, 2019, and notice of the meeting was provided to Doe’s parents. Instead of an IEP meeting on this date, a meeting was held with Doe’s father, the Superintendent of Beacon and another member of Beacon’s staff at which time Doe’s father was informed that Doe had been dis-enrolled from the school. Tr. p.67.
  • Other than a four-day visit in July of 2020 to his home in Woonsocket, Doe has lived in Utah and attended the Spark Academy continuously from May 29, 2019 to the present time. Tr. pp. 71, 83.

Positions of the Parties:

Petitioners:

The position of the Petitioners is that Beacon Charter School has remained Doe’s LEA from the point in time at which he was enrolled as a student there in August of 2017 to the present time. The fact that Doe’s parents did not believe that Beacon could provide FAPE to their son and therefore unilaterally enrolled him in a residential school has no impact on Beacon’s ongoing status as his LEA. His placement in an out of state private school is irrelevant because Beacon retains its status as Doe’s LEA and the school remains responsible to provide DOE with FAPE. Charter schools in Rhode Island are “deemed to be” public schools and students enrolled in such schools retain the same rights under federal and state law as students at non-chartered public schools. Although the Petitioners do not cite a specific statute or regulatory provision, they take the position that Doe, a student enrolled by his parents in a private school, retains the right to be provided with FAPE by Beacon as his LEA.[8] In addition, he and his parents are entitled to certain procedural safeguards that apply when there is a disagreement or dispute as to whether the educational programming offered by Beacon could provide him with FAPE.[9]

Furthermore, counsel for the Petitioners asserts that Beacon could not dis-enroll Doe simply because he is a child with a disability who needed an out of district placement. No public school in Rhode Island would be able to dis-enroll a student under such circumstances. His parents took no steps to dis-enroll him and in fact his father testified as to his intent to have Doe return to Beacon at some point (Tr. p.69)[10]. Counsel therefore asks that the Commissioner rule that Doe remains a student at Beacon and that Beacon continues to be his LEA.

Beacon Charter School:

Along with the filing of Respondent Beacon Charter School’s Post-Hearing Argument/Request for Findings of Fact and Rulings of Law, counsel for the School also filed a Post-Hearing Motion to Strike Petitioner’s Exhibits 15, 23 and 24. The admission of each of these exhibits was fully argued at the time of hearing and no new or additional bases for excluding these exhibits are raised in Beacon’s written Motion to Strike. Therefore, Exhibits 15, 23 and 24 will remain as full exhibits in this record, admitted only for the limited purposes set forth on the record at the time of the hearing.

Counsel for Beacon requests that the Hearing Officer make several findings of fact, some of which are not relevant to the issues in dispute here and will therefore not be summarized. Other facts on which Beacon would focus the hearing officer substantiate steps that staff at the school took to ensure Doe’s safety and his continued academic success at Beacon. After the December 2018 incident, staff sought to make Doe’s return to Beacon safe by adding the services of a one-on-one aide during the entire school day. Throughout the months of January and February of 2019 Beacon staff tried unsuccessfully to schedule an IEP meeting at Bradley Hospital, where Doe was then in attendance at the Hospital’s day program. Beacon’s special education staff sought to obtain access to Bradley Hospital’s discharge recommendations in order to better plan for Doe’s education. It was not until a meeting held in mid-February at Beacon- and without access to Bradley Hospital’s recommendations- that staff were informed of the family’s decision to send Doe to a wilderness program in Utah. Doe moved to Utah in early March of 2019 to attend Aspiro. At the end of May, 2019, his parents enrolled Doe in the Spark Academy, a private school in Provo, Utah without consulting the staff at Beacon. Although Beacon conducted two IEP meetings after Doe’s placement at the Spark Academy, one in June and the other in October of 2019, Doe did not participate in either of these IEP meetings. Beacon has had no contact with him since February of 2019. Other than a four-day visit home in July of 2020, Doe has lived continuously in Utah.

Beacon argues first and foremost that since late May of 2019 when his family enrolled him at the Spark Academy in Provo, Utah, Doe has been a resident of the state of Utah. Under applicable state (Utah) law and Utah State Board of Education Special Education Rules promulgated in 2016, Doe’s LEA is the Provo, Utah, school district. Provo’s school district is required to provide special education services to students in private schools located within the area that the district serves. Since the Spark Academy is located in Provo, it is that district, and not Beacon Charter School, that is responsible for Doe’s education. Since Doe has not resided in Rhode Island since at least late May of 2019, neither Beacon Charter School nor Woonsocket is his LEA.

The fact that Beacon conducted IEP meetings after Doe moved to Utah should not make Beacon his LEA in either June or October of 2019 (when these meetings were conducted), and certainly does not make Beacon his LEA at the present time. Doe was not a Rhode Island resident at the time of either the June 11th or October 11th IEP meetings. Beacon submits that its staff scheduled these meetings only so that they could be prepared to provide Doe with educational services in the event he returned to Rhode Island and requested to re-enroll there. Beacon makes an offer of proof that Doe is in fact the sibling of a current Beacon student and would therefore have priority in terms of re-admission under the school’s sibling policy. Implicitly, Beacon argues that it had no legal obligation to hold IEP meetings as the LEA for Doe at any point after March of 2019, but did so only to be prepared for his potential return to the school.

DECISION

At the time of hearing in late July of 2020, Doe had not attended Beacon Charter School at any time during the prior eighteen (18) months. Yet, his parents argued that the Commissioner must rule that he is still a student at Beacon, that he continues to be a “member of the Beacon community,” and that Beacon remains the LEA responsible for his special education and related services. Neither the record in this case nor any applicable legal authority supports such a ruling. As discussed below, Beacon legitimately dis-enrolled Doe on or about December 4, 2019. The only findings that can be made with respect to Doe’s status at this time and based on this record are that Doe: (1) is and continues to be a resident of Woonsocket, Rhode Island for school purposes; (2) is a “private school child with a disability” entitled to FAPE from his district of residence under Rhode Island law; and (3) is a “parentally-placed private school child with a disability” entitled to “equitable services” from the district in which his private school is located (Provo, Utah) pursuant to both state and federal law.

As a parentally-placed private school child of parents who reside in Woonsocket, Rhode Island, Doe is currently entitled to substantial special education services. These include FAPE from his district of residence under Rhode Island law[11] and “equitable services” from the Provo, Utah, school district under both state and federal law.[12] Although his parents seek in this proceeding to have Beacon declared his current LEA and request an order from the Commissioner that Beacon re-admit him to the school and develop an IEP to provide him with FAPE, it is clear that under the facts here Beacon is not currently Doe’s LEA and is therefore not responsible for providing Doe with special education and related services pursuant to an IEP.

In this case both parties have alluded to the fact that Doe’s placement at the Spark Academy occurred under circumstances in which FAPE was “at issue” as described under § 6.5.5 of our state regulations and 34 C.F.R. § 300.148 of the federal regulations. The parties request a ruling as to whether or not Beacon was Doe’s LEA at any date or time “pertinent” to a claim for reimbursement under the aforementioned provisions. However, the merits of any such claim are not presented here and the “pertinent” dates are not specifically identified on this record. Nonetheless, the record does contain sufficient facts on which to make a finding of the date upon which Beacon ceased to be Doe’s LEA, and to the extent such ruling may assist the parties going forward this issue will be addressed.

It is uncontroverted that Beacon became Doe’s LEA in August of 2017 when he was enrolled as a student at this independent charter school. At that time Beacon exercised the specific authority to operate as an LEA that is conferred upon all independent charter schools in Rhode Island upon the approval of a final charter, which in Beacon’s case, was in 2003. See R.I. Charter School Regulations, 200-RICR-20-05-2, Section 2.2.4 (B) (8). Under R.I. Gen. Laws §16-77-3.1 (b), children with disabilities who attend public charter schools and their parents retain all of the substantive rights and procedural protections under Part B of the IDEA just as they would if the children were enrolled in other public schools. See “Frequently Asked Questions about the Rights of Students with Disabilities in Public Charter Schools under the IDEA” Answer to Question No. 5 (Guidance issued by the US DOE on December 28, 2016). Also of note in this federal Guidance, is Question No. 13: “What are a charter school’s responsibilities for serving a child with a disability once the child is enrolled?” The response includes the following:

…In general, once a child is enrolled in the charter school, (emphasis added) the responsible public agency, commonly the LEA, must convene a meeting of the IEP team, to develop the child’s IEP. If the charter school is its own LEA, that LEA would initiate and conduct the meeting.

This Guidance goes on to clarify, in the answer to Question No. 14, that there are no limits on the amount or type of services that can be provided to a child with a disability who attends (emphasis added) a charter school and that a child’s placement team may determine that it is necessary to place a child in a private school at public expense as a means of providing special education and related services to the child in accordance with 34 C.F.R. §300.146. Although no specific precedent on this point has been cited (nor are we aware of any), enrollment at a charter school appears to be a prerequisite to the ongoing responsibility of the school to fulfill its legal responsibilities as a child’s LEA.

Enrollment at a charter school means that the charter school is responsible for providing the child with an education. The child is either attending the school or has been placed or referred for placement by the charter school in order to receive FAPE. We take administrative notice of the fact that the number of seats in Rhode Island’s charter schools are limited and that admission is by lottery when the number of students seeking enrollment exceeds the number of seats available. Waiting lists for admission are the rule, not the exception. Under Rhode Island’s school funding scheme, both state and local funding supporting a charter school’s operations are based on actual enrollment, with local district payments required to be made on a quarterly basis “for each district’s students enrolled in these schools”. See R.I. Gen. Laws §16-7.2-5 (d). When a student is “enrolled” but not in attendance during the school year, ongoing funding for that student’s seat is placed in jeopardy. Vacancies during the school year are required to be filled by the enrollment of the student in the first position on the waiting list as determined in the previously-conducted lottery. See Section 2.6.4 (D) of the Charter School Regulations, 200-RICR-20-05-2. Enrollment levels are expected to be maintained as described in the school’s charter. (See R.I. Charter Schools Lottery and Enrollment Guidance (February, 2014). Generally speaking, charter schools do not hold seats for students who vacated them.

In Doe’s situation, Beacon maintained his enrollment for several months after his parents elected to enroll him in a private residential school on or about May 29, 2019, without consultation with his IEP team at Beacon and without a referral by his LEA, the Beacon Charter School. At the time his IEP team at Beacon convened on June 11, 2019, Beacon, in recognition of the fact that Doe had been enrolled by his parents in a private residential school, could have dis-enrolled him and forwarded his educational records to his new school. Yet, to its credit, Beacon continued to remain involved in Doe’s education well after this time, offering him a placement in a therapeutic day school upon his anticipated return. The facts in this record indicate that as late as October 11, 2019, when Beacon convened an IEP team to consider Doe’s educational placement, it acted as his LEA. The team at Beacon continued to recommend that Doe be placed in a therapeutic day school in Rhode Island, at Beacon’s expense.

Beacon clearly was acting as Doe’s LEA on October 11, 2019. However, in light of the facts that as of December 4, 2019 Doe had not attended Beacon for almost an entire year, that he had been enrolled in and attending an out-of-state residential school since late May of 2019 and that his parents had implicitly if not explicitly rejected the placement offered by Beacon on October 11, 2019, his dis-enrollment on December 4, 2019 by the Superintendent of Beacon was valid. We find that on December 4, 2019 Beacon’s role as Doe’s LEA terminated.

If, however, Doe’s placement at the Spark Academy is subsequently found to have been necessitated by Beacon’s failure to provide him with FAPE, the circumstances of his dis-enrollment on December 4, 2019 would need to be re-evaluated in that context.

For the reasons discussed above, the Petitioners’ request that Doe be re-enrolled at Beacon at this time is denied.

Footnotes

[1] These two cited statutes establish the Commissioner’s general appellate authority over disputes arising under any law relating to schools or education in the state of Rhode Island.

[2] The issue identified prior to the hearing was the issue of whether Beacon was Doe’s LEA at the relevant time for determining potential responsibility for a unilateral educational placement made by Doe’s parents. Tr. pp. 6-7. At the time of hearing, counsel for Mr. and Mrs. Doe sought to expand the issue to determine if Beacon continues to be Doe’s LEA up to the present time.

[3] The communications during this timeframe also evidence Beacon’s concern that Doe’s absences from school were not excused absences. After learning of plans for Doe’s anticipated stay at Aspiro at a meeting with his parents on February 13, 2019, Beacon’s Superintendent wrote to advise that “in the absence of medical documentation for the placement, we must treat the absences as unexcused”. He further advised that if a doctor’s note indicating that the absences over the next 8-12 weeks were medically necessary, the school would excuse these absences. Pet. Ex. 3b. The Superintendent wrote to Doe’s parents after receiving the March 1, 2019 letter with information on Aspiro’s program and the services that would be made available to Doe there to indicate that this documentation was not sufficient to document an excused (medical) absence. Pet. Ex. 3a. He further indicated in a second letter sent to Doe’s parents in March of 2019 that: “[w]ithout a documented medical absence, we are left with only two options: for [Doe] to be withdrawn from Beacon or for the school to consider him truant”. Pet. Ex. 3a.

[4] In letters forwarding Doe’s records to three potential therapeutic day schools on June 17, 2019 Beacon’s Director of Special Education noted that “[d]ue to some safety concerns his parents are seeking alternate placement in a highly structured environment for [Doe]. Beacon is in support of this consideration”. See Pet. Ex. 17, 18 and 19. These letters also noted that Doe “is a student at Beacon who was very successful here…”

[5] It should be noted that one of the staff members from Beacon participated as the designated “LEA Representative/Chair” of this IEP meeting.

[6] The team members from the Spark Academy participated via telephone.

[7] An unresolved factual issue is whether Doe’s parents received two draft IEP’s at the October 11, 2019 IEP meeting- an IEP dated 6/11/2019 and an IEP dated 10/11/19 (as indicated in the Meeting Notes, Pet. Ex. 25). Doe’s father testified that he received only one draft IEP on October 11, 2019, an IEP dated June 11, 2019 (Pet. Ex. 1). He testified that the IEP dated June 11, 2019 was the only IEP that was presented by Beacon since his son’s placement at the Spark Academy. Tr. pp. 52-55. Although the testimony was that the IEP team recommended Doe’s placement in a therapeutic day school at both meetings, i.e. the meeting on June 11, 2019 and again at the October 11, 2019 meeting, the June 11, 2019 IEP actually calls for Doe’s placement in a “[g]eneral education class with special education consultation, supplementary aides (sic) and services or part time services in a special education class” and not a specialized day school. See Pet. Ex. 1 at page 18.

[8] Petitioners may implicitly be arguing here that R.I. Gen. Laws §16-24-1(b), which retains FAPE for students enrolled by their parents in private schools, must be applied to charter school LEA’s. Under Rhode Island law students enrolled by their parents in private schools retain a right to FAPE from their district of residence. When the IDEA was amended in 2004 to provide parentally-placed private school students only with equitable services pursuant to a “services plan” developed by the district in which the private school is located, R.I. Gen. Laws §16-24-1(b) was enacted. This provision of state law is further codified in 200 RICR-20-30-6 Section 6.5.3 (A) (2). The district of residence in Rhode Island must make FAPE available to such private-school students upon request of the child’s parent.

[9] While maintaining that Beacon continues to be Doe’s LEA over the entire period of time that he has been in Utah, counsel for the Petitioners also indicates that there is a dispute as to whether or not Beacon provided him with FAPE. Any dispute with respect to Doe’s receipt of FAPE or claim of Beacon’s financial responsibility for his placement at a private school is not before this hearing officer. See Tr. pp. 6-11.

[10] In fact, the remedy sought at the time of the Petitioner’s request for a hearing was that Beacon be directed to re-enroll Doe and develop an IEP that would provide him with FAPE. See letter of appeal dated February 29, 2020. (H.O. Ex. A for I.D.)

[11] Under R.I. Gen. Laws §16-24-1(b), and the Regulations Governing the Education of Children with Disabilities, §6.5.3 (A), Doe’s district of residence (Woonsocket, where he is “deemed to reside” with his parents under R.I. Gen. Laws §16-64-1) is obligated to make FAPE available to him upon the request of his parents.

[12] Under the Regulations Governing the Education of Children with Disabilities, supra, in §6.5.3 (J) Doe is entitled to “equitable services” from the school district in which his private school is located, consistent with the provisions of IDEA regulation 34 C.F.R. §300.138. Utah’s Special Education Rules include a corresponding obligation for school districts in Utah in which private schools with children with disabilities in attendance are located. See Utah State Board of Education Rules (October, 2016) Section VI (B).

/s/ Kathleen S. Murray

Kathleen S. Murray

Hearing Officer

Angélica Infante-Green,

Commissioner

Date: December 18, 2020