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IDEA Complaint Decision 05-063

On December 23, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX on behalf of the Winneconne Community School District against the Oconomowoc Area School District. This is the department’s decision regarding that complaint. The issue in the complaint is whether the Oconomowoc Area School District is failing to make available free appropriate public education (FAPE) to a school district resident who lives in a community-based residential facility.

The student, who is the subject of this complaint is a child with a disability, as defined at s.115.76 (5), whose parent lives in the Winneconne Community School District. Prior to August 2002, the student attended a school within that school district. In August 2002, he was placed by county court order in the Oconomowoc Development Training Center (ODTC), which operates a private school and residential care center (RCC) for children and youth. Winnebago County paid for the RCC placement. While residing in the RCC, he attended the private school operated by ODTC. Under s.115.81(4)(a)1., the Winneconne Community School District ensured he received FAPE while he resided in a RCC. Pursuant to s.115.81(4)(b)5., Winnebago County paid the student’s educational expenses while he resided in the RCC.

A court order issued on July 26, 2004, anticipated the student would need to be moved from the RCC to an adult facility on his 18th birthday. Consequently, when the student turned 18 on October 14, 2004, he was moved to an adult community-based residential facility (CBRF) located within the Oconomowoc Area School District. Since the student was moved to the CBRF, neither the Winneconne Community School District, nor the Oconomowoc Area School District, has acknowledged responsibility to ensure the provision of FAPE as the student’s local educational agency (LEA). Winnebago County continues to pay for his residential placement, but stopped paying his educational costs when he was moved out of the RCC and into the CBRF. Until December 22, 2005, ODTC continued to provide educational services consistent with the IEP developed by the Winneconne School District even though ODTC was no longer receiving payment for these services. ODTC attempted to collect payment for these educational services from the Winneconne Community School District and the Oconomowoc Area School District. Neither school district has paid. On December 23, 2005, the department received this complaint from the Winneconne School District. The Winneconne School District has continued to express concern regarding this student, even though they believe they are no longer the child’s LEA.

A LEA must make available FAPE to children with disabilities until the end of the school term in which they attain the age of 21 or graduate with a regular high school diploma. [Section 115.77(1m)(b)] "'Local educational agency' means the school district in which the child with a disability resides." [Section 115.76(10)] Residency for educational purposes is determined by state law. The long-held standard was established in State ex. Rel School District # 1 of Waukesha v. Thayer, 74 Wis. 48, 41 N.W. 1014 (1889). The Thayer court addressed the question of whether, for school purposes, a child living away from the parents’ home should be considered a resident of the district in which the child actually resides or the one in which the child’s parents reside. In making its decision, the court approved the rule formulated by the state superintendent.

The court held for school purposes, children residing away from their parents’ homes are considered residents of the school districts in which they live when they "are actually residing in the district for other, as a main purpose, than to participate in the advantages which the school affords." Id. at 53, 41 N.W. at 1017. In deciding the case, the court stated "[t]his term ‘reside,’ however, is used by the court and in the statutes in its general, popular sense, rather than in the restricted, technical sense of legal domicile." Id. Further, in discussing the laws governing education, the court recognized a public policy interest in ensuring the public schools are available to children, wherever they actually live.

It is evident, therefore, that the language used in these connections is designedly used to recognize the mobility of school population or persons of school age; that it is the true intent and purpose of the law to throw open the doors of the public schools to such persons wherever actually residing. Id.

For decades the department has relied consistently upon Thayer when advising school districts about residency issues. The department has consistently applied the rule to children living in various facilities including the Milwaukee County Home, group homes, foster homes, nursing homes, secure detention facilities, county jails and, prior to 1993, RCCs. Under Thayer, these children are residents of the school district in which the facility is located.

1993 Wisconsin Act 14, codified in s.115.81 Wis. Stats, created a specific and limited exception to the Thayer rule. The exception applies only to children placed by counties or state agencies in RCCs. Section 115.81(1)(b) provides the responsible LEA for such a child is generally "the local educational agency that was responsible for providing a free, appropriate public education to the child before the placement of the child in a residential care center for child and youth . . . "

Further, s. 115.81(4) (b) 5. requires the county or state agency, which placed the child in an RCC, to pay the educational costs while the child resides in the RCC. These specific and limited statutory provisions do not apply to an adult student residing in a CBRF. Rather, under Thayer, the school district in which the CBRF is located is responsible for ensuring FAPE and paying for necessary educational costs for the adult student.

Over the past year, the department has provided clear guidance to the Oconomowoc Area School District on this issue. In a letter dated December 13, 2004, the Oconomowoc School District requested clarification related to its FAPE responsibilities regarding this student. In a January 14, 2005, letter from the Director of the Special Education Team, Stephanie Petska, the department advised because the student no longer resided in a RCC, the applicable standard to determine residency is Thayer. Accordingly in that letter, the department directed the Oconomowoc Area School District to determine whether the student was living in the district primarily to obtain educational benefits. If he was not, the letter concluded "he is a resident of the district for educational purposes and Oconomowoc is his FAPE agency. The determination of residency should be made expeditiously."

Instead of heeding this directive, the Oconomowoc Area School District, and its counsel asserted in correspondence to the Winneconne Community School District, and the ODTC, it had no responsibility to ensure FAPE for this student. Winneconne asked the department to resolve this dispute in October, 2005. In response to that request, Deputy State Superintendent Anthony S. Evers sent another letter. His letter not only reiterated Thayer is the proper test, but reminded the Oconomowoc Area School District it had been advised ten months earlier to apply Thayer expeditiously. He asked the district to confirm this had been done no later than November 1, 2005. His letter also stated that under Thayer, the presumption is the student is a resident of the Oconomowoc Area School District, and the district is responsible for his education.

Despite these directives, the Oconomowoc Area School District, through its counsel, continues to assert that the Thayer standard does not apply. Counsel argues, citing State of Wisconsin in the Support of Robert H. v. Randall H., 257 Wis.2d 57, 653 N.W.2d 503 (2002), Oconomowoc Area School District is not responsible for his education because the student’s placement addresses medical, social, or emotional disabilities apart from his special education needs. However, Robert H does not support counsel’s position. In Robert H, the issue before the court was whether a parent was exempt from a child support order when the child was placed in a residential treatment facility by a Child in need of Protection or Services (CHIPS) order. The parent argued the residential placement was necessary to ensure FAPE to the child and the placement, including the provision of room and board, must be at no cost to the parent. The court thus considered whether IDEA preempted state statutes requiring parents to contribute to the support of their children placed outside the home by a CHIPS order. Id. at 60, 653 N.W.2d at 504. The court ruled that the federal and state statutory schemes were not conflicting because the child’s placement at the facility was not an educational placement for purposes of IDEA, and, therefore, the parents were not relieved of the child support obligation under the CHIPS order. Id. at 71, 653 N.W.2d at 509. The issue of residency, pertaining to a school district’s responsibility to ensure FAPE, was in no way before the Robert H. court. Furthermore, no one is suggesting that the Oconomowoc Area School District is responsible for the costs associated with room, board, and non medical care. The county is paying those costs. Rather, only costs associated with the student’s educational program is at issue in this complaint.

The student, who is the subject of this complaint, has not resided in the RCC since October 2004. Therefore, the s.115.81(1)(b) exception to Thayer no longer applies. Consequently, Thayer is the proper rule to apply. The youth resides in the Oconomowoc Area School District. His main purpose for residing there is not to participate in the advantages the school district offers. Rather, the main purpose is for care. Further, the county is no longer responsible for paying the student’s educational costs as of October 14, 2004.

The Oconomowoc Area School District became the student’s LEA on October 14, 2004, when he was moved into a CBRF located in the district. The Oconomowoc Area School District had then, and has now, a duty to ensure the student is provided FAPE. These duties include ensuring special education and related services are provided in conformity with the student’s IEP at no cost to the parent. The Oconomowoc Area School District must pay ODTC for the IEP services provided by ODTC from October 14, 2004 until December 22, 2005, and provide the department with documentation that the outstanding educational expenses have been paid by February 15, 2006. The Oconomowoc Area School District must also immediately ensure implementation of his February 7, 2005, IEP, and provide the department documentation the student is receiving the services required. The district will review the student’s IEP, and if necessary, revise it on or before February 7, 2006. The district’s IEP team will consider whether, as a result of the interruption of special education services, the student requires additional services. On or before February 10, 2006, the district will provide the department the student’s revised IEP and documentation that additional services have been addressed. Further, the district will reevaluate the student on or before February 24, 2006. The district will provide the department the student’s IEP team reevaluation report and placement notice no later than February 28, 2006.

This concludes our review of this complaint.

//signed 1/20/06
Anthony S. Evers
Deputy State Superintendent