Attorney General: Honorable Linda D'Amario Rossi, Department Of Children and Families, 1996-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

March 6, 1996

Honorable Linda D'Amario Rossi
Department Of Children and Families
505 Hudson Street
Hartford, CT 06106

Dear Commissioner Rossi:

You have asked for our advice in interpreting Public Act 95-237, "An Act Concerning Special Education Due Process, The Cost of Special Education And A School Construction Project." The principle questions you pose relate to the special education of children placed by the Department Of Children and Families.

To understand the public act, it is helpful to examine the statutory scheme governing responsibility for the special education of DCF-placed Children prior to amendment by Public Act 95-237. General Statutes l0-76d(e)(2) formerly provided that

[w]henever a Public agency, other than a local or regional board of education, the State Board of Education or the Superior court acting Pursuant to Section 10-76b, places a child in a foster home, group home, hospital state institution, receiving home, custodial institution or any other residential or day treatment facility, and such child requires special education, the local or regional board of education under whose jurisdiction the child would otherwise be attending school or, if no such board can be identified, the local or regional board of education of the town where the child is placed, shall: (A) Provide the requisite identification and evaluation Of such child in accordance with the Provisions of this section; and (B) be financially responsible, except as Provided in this sub-division, for the reasonable costs of special education instruction.

In essence, then, when children who required special education were placed by a state agency, the responsibility for their education--for developing their programs (programmatic responsibility) and for funding the programmed education (financial responsibility) -- was borne by the town where the child would have been otherwise attending school. This is typically the place of the parents' residence and is referred to as a child's "nexus" school board of education. Some children who come into the state's care do not, however, have a nexus school district. This could be because both parents are deceased, have disappeared, live out of state, or have had their parental rights in the child terminated. When a child has no nexus school district -- "no nexus" status -- then the town where the child was placed would have had responsibility for the special education (programmatic and financial). For example, if a child requiring special education, living with parents in New Haven, was removed from the home and placed by a public agency in a foster home in Branford, New Haven would have remained responsible for the special education. If, on the other hand, the child was residing in New Haven, but had no legal tie to a living parent in Connecticut (in other words, no nexus), then Branford would have become responsible for the education.

The same statute, again prior to amendment, established a reimbursement scheme for district providing special education to children place by a public agency. For both nexus and no-nexus placements, the State Department of Education was obligated to pay the difference between two-and-one-half times the average per pupil costs of the school district and the actual costs of the special education. Furthermore, when the ration of no-nexus placements in foster homes in a school district exceeded one-quarter of one percent of the school population and the total number of no-nexus placements in the school district exceeded five, the placing public agency (for example, DCF) was required to pay either fifty percent of the special education costs attributable to such children or the difference between the average per pupil costs and the actual special education costs, whichever was less.

The General Assembly changed both the responsibility for special education and the reimbursement schemes when it enacted Public Act 95-237. Specifically, Section 1 of the public act, in relevant part, amends General Statutes 10-76d(e)(2) by creating two subdivisions. Section 10-76d(e)(2) still addresses the programmatic responsibility of local boards for special education.

[w]henever a public agency ... places a child in a foster home, group home, hospital, state institution, receiving home, custodial institution or any other residential of day treatment facility, and such child requires special education, the local or regional board of education under whose jurisdiction the child would otherwise be attending school or, if no such board can be identified, the local or regional board of education of the town where the child is placed, shall provide the requisite special education and related services to such child in accordance with the provisions of this section.

The public act therefore affirms the principle that responsibility for the provision of special education rests with local boards (the appropriate board being identified by the nexus/no-nexus status of the placed child).

The two newly created subdivisions affect financial responsibility for special education. Section 10-76d(e)(2)(A) recognizes that the nexus board is financially responsible for funding the special education of a nexus child placed by a public agency: "The local or regional board of education under whose jurisdiction such acted would otherwise be attending school shall be financially responsible for the reasonable costs of such special education and related services." The subdivision also contains a reimbursement scheme identical to that which formerly existed (that SDE would pay for special education costs above a certain level). Although set forth in a new subdivision then, these provisions do not change the former schemes for special education responsibility or reimbursement regarding nexus placements.

Section 10-76d(e)(2)(B) provides for special financial responsibility for the special education of no-nexus children. Unlike subdivision (A), it enacts significant changes to the former law. Financial responsibility is placed initially on the board of the town or region where the child was attending school or residing immediately prior to placement:

Whenever a child is placed pursuant to this subdivision, on or after July 1, 1995, by the department of children and families and the local or regional board of education under whose jurisdiction such child would otherwise be attending school cannot be identified, the local or regional board of education under whose jurisdiction the child attended school or in whose district the child resided at the time of removal from the home by such department shall be responsible for the reasonable costs of special education and related services provided to such child.

This responsibility lasts "for one calendar year or until the child is committed to the state pursuant to Sections 46b-129 or 46b-140 or is returned to his parent or guardian, whichever is earlier." The subdivision contains an additional provision: "If the child remains in such placement beyond one calendar year the department of children and families shall be responsible for such costs." The public act removed, with regard to no-nexus children, the application of the SDE reimbursement scheme (which remained with regard to nexus children). It also removed the existing general requirement that, under certain conditions (dictated by the ratio and number of no-nexus placements occurring in a town), public agencies (such as DCF) are responsible for partially reimbursing local boards providing special education for no-nexus children. The only basis for DCF financial responsibility, therefore, is the provision for the payment of costs regarding certain no-nexus placements.

Your request for an opinion regarding the interpretation of the public act centers on the meaning of this second subdivision. The new General Statutes 10-76d(e)(2)(B) does not purport to change the directive that the town where a no-nexus child is placed is responsible for providing special education to such a child. See Conn. Gen. Stat. 10-76a(d); Regs. Conn. 10-76a-1. By its terms, all the new subdivision provides is criteria pursuant to which the reasonable costs of such special education will be borne for certain children by an entity other than the town of placement (specifically, by the town of the child's prior residence or by DCF). In situations for which there is no provision of reimbursement, the town of placement does not receive any financial contribution toward the costs of its provision of special education for no-nexus children.

The principal issue, then, is the exact meaning and scope of the reimbursement guidelines provided in 10-76d(e)(2)(B). As already noted, the subdivision provides that the special education costs of no-nexus children placed by DCF be borne initially by the board of the town or region "under whose jurisdiction the child attended school or in whose district the child resided at the time of removal from the home by such department." This initial obligation lasts until the earliest of three events: the lapse of one year; the commitment of the child to DCF; or the return of the child to her or his parent or guardian. The only additional provision for assumption of the costs of special education makes DCF the financially responsible agent, but only upon the first condition: "If the child remains in such placement beyond one calendar year the department of children and families shall be responsible for such costs." The subdivision is silent about financial responsibility in the event of either the second or the third conditions. Because DCF assumes financial responsibility upon the first of the three condition only, it is financially responsible for non-committed children only. The provision must be read together with the preceding sentence and, therefore, it is limited to cases where the child has been in placement more than one year and is still not committed. The three conditions are mutually exclusive for the purpose of triggering the financial responsibility criteria in the public law. If the first of these conditions is met, it is clear that neither of the other conditions would have yet been met, leaving only non-committed children within the category for which DCF assumes financial responsibility. An alternative interpretation would require that the statute have been drafted to provide "if the child remains in such placement beyond one calendar year or is committed to DCF the department of children and families shall be responsible for such costs." Accordingly, DCF assumes the cost of special education for placed children who, after one year in placement, have not yet been committed.

This interpretation of Public Act 95-237 is based on the language enacted. It is a well-established rule of statutory construction that we must ascribe plain and ordinary meaning to the language actually used. See, e.g., Finkenstein v. Administrator, 192 Conn. 104, 110 470 A.2d 1196 (1984). Furthermore, we cannot read into statutes, by construction, provisions which are not clearly stated. See, e.g., id. The effect of the public act is to shift the initial cost of special education for no-nexus children from the town of placement to the town of last residence. The town of placement incurs costs for no-nexus children only after termination of the obligation placed first on the town of last residence. This interpretation is also supported by extant legislative history regarding the public act. Representative Staples, who introduced the final report of the bill in the House of Representatives, described the bill's purpose: "where a child is [a] no nexus child we shift the responsibility from the town that is where the child is actually residing in his placement to the town of a last known address." H.R. Proc., 1995 Sess., 95HTROO530.TRN, p. 10, remarks of Representative Cameron C. Staples. Furthermore, the legislative history is bereft of any indication that the legislature intended that DCF assume financial responsibility for the special education of committed no-nexus children. This would entail a significant change regarding DCF's role in special education. We can not read the public act to require this absent not only express language to this effect but also any supporting legislative history.

We respond, then, that under Public Act 95-237 DCF is responsible for the special education costs associated with no-nexus, non-committed children placed by the department who remain no-nexus and non-committed beyond one year in placement. As explained already, the special education costs of this category of child during the first year of placement are borne by the previous town. And, upon commitment, the costs are borne by the placement town.

Specific Questions

Public Act 95-237, Section 1 (regarding General Statutes 10-76d(e)):

1. Meaning of the term 14 "placement."

You have asked whether the term "placement" refers to the physical or educational placement of a child and whether it refers to a single placement in a particular home or facility or instead to an ongoing placement, which may involve multiple sites.

Public Act 95-237 governs special education for children when a public agency "places a child in a foster home, group home, hospital, state institution, receiving home, custodial institution or any other residential or day treatment facility." "Placement," in this sense, means the physical placement of a child. Nothing in 10-76d indicates that "placement" was intended, or in fight of the recent amendments is now intended, to refer to an "educational placement." Further-more, the language of the provision refers to a broad category of possible locations for a public agency placement. It follows from the manner of this listing that "placement" refers to a public agency's initial act of placement and does not refer to subsequent moves among residential sites, which might follow the first placement. For the purpose of determining the commencement of DCF financial responsibility for special education (as outlined in the principal discussion, above), the "one year in placement" period is measured from the first placement by DCF, regardless of whether the department subsequently moves the child arnong various placement sites.

2. Meaning of the phrase "committed to the state."

You have asked whether the phrase committed to the state" includes situations in which the DCF Commissioner is the child's statutory parent in addition to the commitments noted in the public act.

Public Act 95-237 provides, in relevant part, that, in the case of no-nexus children, a board where a no-nexus child last resided is financially responsible for the child's special education until the child is committed to the state pursuant to sections 46b-129 or 46b-140. The phrase is limited, by the terms of the public act, to commitments determined pursuant to these two statutory provisions. DCF's role as a statutory parent is governed by General Statutes 17a-1 12. Accordingly, the phrase does not include commitment to DCF on this latter basis.

3. Meaning of the phrase "school district in which the child would otherwise be attending school."

You have asked whether the phrase "school district in which the cud would otherwise be attending school" is equivalent to the term "nexus" and whether the system of educational jurisdiction involving nexus children remains unchanged by Public Act 95-237.

The phrase "school district in which the child would otherwise be attending school" was used in the statute prior to the recent amendment, and is used in the amendment in the same manner as used in the statute. Although the term "nexus" does not appear in General Statutes 10-76d(e)(2) or Public Act 95-237, it has been the practice among public agencies (such as SDE, DCF and local school boards) to use "nexus," or, more properly "nexus school district," as meaning "school district in which the child would otherwise be attending school" (as has been done in this opinion). Nothing in the act prohibits the continued use of the term "nexus" as equivalent to the phrase used in the act. More important, the system of nexus-based jurisdiction is not changed by the public act.

4. Responsibility for payment of the special education expenses of nexus children.

You have asked if the public act requires DCF to pay the special education expenses of nexus children and, if so, the specific parameters of responsibility for such payments.

Public Act 95-237 provides that the special education costs of nexus children placed by a public agency, such as DCF, be borne principally by the nexus board of education. It also includes a provision for payments by SDE, under certain circumstances, for the special education costs related to nexus children. The public act contains no requirement for DCF payments of nexus children special education costs.

5. Responsibility for payment of the special education expenses of no-nexus children.

You have asked if the public act requires DCF to pay the special education expenses of no-nexus children and, if so, the specific parameters of responsibility for such payments.

Public Act 95-237 does require DCF to pay, under certain circumstances, special education expenses of no-nexus children. This is addressed in the principal discussion, above.

6. Programmatic responsibility for the special education of nexus children.

You have asked if DCF has programmatic responsibility for nexus children.

Public Act 95-237 provides that special education for nexus children is to be provided by the nexus board of education. Provision of special education includes the programmatic responsibility. The public act contains no provision for DCF programmatic responsibility.

7. Programmatic responsibility for the special education of no-nexus children.

You have asked if DCF has programmatic responsibility for no-nexus children. You have asked us to consider the relevance to this issue of DCF financial responsibility for no-nexus children, which arises under certain circumstances.

Public Act 95-237 provides that special education for no-nexus children is to be provided by the board of education where the child is placed. Provision of special education includes programmatic responsibility. The public act contains no provision for DCF programmatic responsibility. The fact that DCF might, on a case-by-case basis, have financial responsibility for the reasonable costs of providing special education to a no-nexus child does not affect programmatic . responsibility, which lies with the town of placement. DCF does not have programmatic responsibility for the special education of no-nexus children.

8. Parameters of DCF fiscal and/or programmatic responsible for children.

You have asked for an interpretation of the parameters of the fiscal and/or programmatic responsibility.

Public Act 95-237 specifically provides that DCF financial responsibility for a non-committed no-nexus child placed by DCF begins, if at all one calendar year after a child enters an initial placement after July 1, 1995. DCF does not have programmatic responsibility (see questions 6 and 7).

9. Effect of exclusion of Unified School District II (The State-Wide School District Responsible for DCF-Operated Schools in DCF Facilities).

You have asked for an interpretation of the public act in situations involving no-nexus children in which DCF's USD II is the "previous board." You have also asked for a determination of the validity of an existing agreement between DCF and SDE.

Public Act 95-237 leaves standing the provision in General Statutes 10-76d(e)(2) that '[t]he provisions of this subdivision shall not apply to the school districts established within the department of children and families, pursuant to section 17a-37.' This means that USD II shall not be considered a school board for the purposes of the public act. Specifically, when determining the "previous" board of education for the purpose of assessing initial financial responsibility for no-nexus children, USD II shall not be considered. Instead, the "previous" board would be the "local or regional board of education under whose district the child resided at the time of removal from the home by [DCF]."

DCF and SDE entered a memorandum of agreement in 1993 in which DCF agreed to consider no-nexus children, placed by DCF in private residential facilities, to be in the educational jurisdiction of USD II. Under the current public act, the memorandum of agreement is not operative because the statute now provides that the school district where the child last resided or attended school is now responsible.

10. Determination of "reasonable costs."

You have asked for an interpretation of the phrase "reasonable costs," as well as for a determination of the manner in which DCF payment of the "reasonable costs of special education and related services" must occur.

Public Act 95-237 provides in relevant part that, regarding no-nexus children, DCF, under certain conditions, shall be responsible for "the reasonable costs of special education and related services." "Reasonable costs" is not defined in the public act, but it is a phrase that was used in the statute prior to amendment for determination of SDE reimbursement for nexus children (and it continues to be used in the act for this purpose). There is no indication in the act that the meaning of "reasonable costs" differs from the meaning in present practice by SDE. Accordingly, DCF should consult with SDE regarding the implementation of this criterion.

11. Meeting requirement regarding DCF and child's former school district.

You have asked about the purposes and format of the legislatively mandated meeting, in cases where DCF places a no-nexus child, between DCF and the board of the child's former residence. You also asked about the relationship between this meeting and special educational meetings designed to assess the needs and to develop a program for a child.

Public Act 95-237 provides in relevant part that

Within ten days after the date the department of children and families places a child pursuant to this sub-division [General Statutes 10-76d(e)(2)(B)J, such department shall meet with designated representatives of the local or regional board of representatives of the local or regional board of education under whose jurisdiction the child attended school or in whose district the child resided at the time of removal from the home to review the child's individualized education plan and the services provided to the child in the community prior to such removal and to consider a placement in the town or region in which the child previously resided.

The explicit reference to "review the child's individualized education plan" indicates that the meeting envisioned by this provision is a "planning and placement team" (PPT) meeting, within the meaning of SDE regulations. See Conn. Regs. 10-76a-10), 10-76d-10(d). Accordingly, the "local or regional board of education under whose jurisdiction the child attended school or in whose district the child resided at the time of removal from the home" must convene the meeting and is responsible for notice and all other matters relating to a PPT meeting. See Conn. Regs. 10-76d-10, 10-76d-12. DCF is required to attend a PPT meeting convened pursuant to the new public act.

Public Act 95-237, Section 2 (regarding General Statutes 10-76e.

DCF liability for bond expenses.

You have asked whether DCF, in light of this section of the public act, has responsibility for paying all or any portion of the bond expenses as may be incurred under the public act.

Public Act 95-237, in relevant part, amends General Statutes 10-76e, which provides for a "School construction grant for cooperative regional special education facilities." Nothing in the public act alters the existing meaning of the statutory provision. Accordingly, DCF does not have responsibility for paying any portion of bond expenses related to this section of the public act.

Public Act 95-237, Section 4 (regarding General Statutes 10-253):

Responsibility for special education of a child placed in a temporary shelter.

You asked whether DCF's Unified School District II is responsible for the special education of a child placed in a temporary shelter.

Public Act 95-237 amends General Statutes 10-253 by adding the following provision:

[I]n the case of a child who requires special education and related services and is placed by the department of children and families in a temporary shelter on or after July 1, 1995, the school district in which the child resided immediately prior to such placement shall be responsible for the cost of such special education and related services, in accordance with the provisions of subparagraph (B) or subdivision (2) of subsection (e) of section 10-76d, amended by section I of this act.

This provision refers to the new General Statutes 10-76d(e)(2)(B), which provides in relevant part that a previous board's financial responsibility lasts "for one calendar year or until the child is committed to the state pursuant to Sections 46b-129 or 46b-140 or is returned to his parent or guardian, whichever is earlier." The previous board's financial responsibility for the special education costs of children placed by DCF in temporary shelters is limited, therefore, by these same restrictions. Upon the occurrence of one of these conditions, the financial responsibility of the previous board ceases; the town of placement becomes responsible if the child is committed or if one calendar year lapses, whichever occurs first. The public act makes no provision for any financial responsibility for DCF for children in such temporary shelter placements. This interpretation is based on the language of the provision, which makes reference to the previous board only.

Accordingly, pursuant to this provision of the public act, DCF has neither financial nor programmatic responsibility for the special education of a child placed in a temporary shelter.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Michael J. Besso
Assistant Attorney General


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