Navigating School Accommodations and Residency Enforcement: Legal Insights for School Officials

1. Legal Issues for School Business Officials:School Accommodations, Special Education, Potential Cost Savings Christine L. Chinni, Esq. Craig S. Meuser, Esq. Chinni & Meuser LLC

2. Outline of Presentation School Accommodations (Residency and Transportation Special Education Overview Cost Saving Measures in a Variety of Areas School Activity Funds Questions throughout

3. Entitlement to Attend School and Receive Transportation Section 10-186: (a) Each local or regional board of education shall furnish, by transportation or otherwise, school accommodations so that each child five years of age and over and under twenty-one years of age who is not a graduate of a high school or vocational school may attend public school,

4. Problem of Residency In many instances, parents of non-resident children find ways to enroll their children in a public school in a neighboring town to secure an alleged better and/or safer educational program

5. Residency Enforcement A student can have only one residency and that residency determines where s/he may receive school accommodations

6. Residency Enforcement In any given year, if 20 non-resident students enroll in your school district your district could face $200,000 in unanticipated costs (based on the lowest state per pupil expenditure) Even if it is impossible to calculate a precise cost for the hypothetical 20 students, it is a political issue on which all stakeholders can agree – no accommodations without taxation.

7. Disputing Entitlement to School Mangiofico v. State Board of Education, (Conn. App. 2012) Family had lived in New Britain from 1996-2006 Built house and moved to Farmington Moved back to New Britain while Farmington house being improved; plan to move back afterwards Weather and other problems kept family in New Britain longer than planned

8. Disputing Entitlement to School Weather and other problems kept family in New Britain longer than planned Family claimed their continued ties with Farmington (church, clubs, etc) and their plan to return was equivalent to actual residency On appeal, family claimed the statute required an exception to the residency requirement for displacement due to natural disaster.

9. Appeal Process Remember multi-level appeal process local BOE (1-day notice is insufficient) State level H.O (20 day rule favors BOE) Superior Court (minority of cases) Appellate Court (such as pre-k case and DCF)

10. Disputing Entitlement to School • Student v. Windsor Board of Education, 2011 • Parents’ Evidence of Windsor residence: a lease in Windsor, without proof of actual residence • District’s evidence of other town of residence: • Social Services • Housing Assistance • Motor Vehicle Registration • Windsor prevails

11. Disputing Entitlement to School Student v. Stratford Board of Education, 2011 At one time, students residents of Stratford Upon divorce, mother and students move to Bridgeport Mother signs documents identifying students as residents of Bridgeport apartment Mother’s testimony that children really still resided in Stratford insufficient to overcome documentary evidence

12. Residency Enforcement Central Office Steps - • Establish protocol on how to determine student residency and how to deal with parents and guardians • Confirm Board and Administration support of a shared mission. • Inform district personnel of the importance of the protocol • Consider hiring a part-time residency investigator.

13. Residency Enforcement Building Steps - Principals, Teachers, Bus Drivers, Parents, Neighbors, -- are all good people for information about student residency.

14. Residency Enforcement Caveats - Remember, once the student is in, s/he remains until the completion of the entire residency hearing process, including appeal

15. Residency Enforcement Caveats - Board can seek tuition reimbursement if Board prevails, but only for the period between Board decision and appeal decision However, seeking reimbursement will be a political issue, as well

16. Raise Revenue From Non-Resident? Common Question – Should we open school to students in neighboring towns to increase financial support for ongoing program?

17. Non-Resident Revenue Simple Economic Analysis – marginal cost of several additional children across grade levels will cost much less than average per pupil cost in the district. Policy Analysis – Some Boards permit non-resident students to enroll on a tuition basis.

18. Non-Resident Revenue • Ignore Legal Issues at Your Risk – • Discretionary review of applicants • Protection of in-district programs • Limitations at grade and building levels • Tuition level charged to parents of non-resident students (regular education and special education)

19. Non-Resident Revenue Policy Language in Effect in Some Districts: “This policy does not obligate the Board of Education to provide special education programs or services or create unique programs for students.”

20. Non-Resident Revenue Policy Language in Effect in Some Districts: “If a non-resident student is enrolled or continued in the Mountain Laurel Public Schools, and such child is eligible for services under the Individuals with Disabilities Education Act ("IDEA"), the Mountain Laurel Public Schools shall not act as the local education agency for such child.”

21. Non-Resident Revenue Policy Language in Effect in Some Districts: “In instances where special or additional services are provided for a non-resident student, a supplemental tuition or fee may be charged based upon the actual costs associated with providing the special or additional services.”

22. Non-Resident Revenue Both OCR and the Connecticut State Bureau of Special Education have indicated that refusal of enrollment and/or charging of higher tuition to special education students under such arrangements is an illegal, discriminatory practice.

23. Non-Resident Revenue BOTTOM LINE – PROCEED WITH CAUTION, AND CONSULT WITH COUNSEL

24. Entitlement to Transportation Services 1. Statutory Obligation In-District Schools Magnet Schools Charter Schools Private Schools in Town Private Sp. Ed. Programs Vo-Tech/Vo-Ag Schools 2. Policy Obligation – Avoiding hazardous conditions Exceptions

25. Transportation Costs Reality - Per diem cost of regular large student buses continues to increase. Efforts to reduce the number of bus trips on a given day can have significant impact on annual transportation budget

26. Transportation Costs Reality - Personal requests for the addition of more bus stops in difficult to reach locations; or within close proximity of each other frequently cause districts to consider adding another bus run or trip to the budget (exceeds 50,000/year to add a bus run) SAY No to request; save money; avoid using 1 more costly bus

27. Transportation – Minimize Risks Prepare a policy that complies with the Board’s minimum legal obligations Avoid additional promises in the policy or regulations Enforce policy on consistent basis across settings and school years

28. Transportation – Minimize Risks Investigate claims on hazardous or unsafe walkways or bus stops Work with town personnel and/or local or state police to assess roadway, walk way conditions and dimensions and threats to safety in the area

29. Transportation – Minimize Risks Central Office Steps: Review options for consolidating bus runs, or layering of bus runs depending on start times of schools Consider impact of layered runs on “wrap around time” in teacher contract

30. Transportation Appeals Parent v. North Haven BOE, Case # 11-2, April 13, 2012 Walking distance of 450 feet from 2nd grade student’s home to the bus stop was not arbitrary, capricious or unreasonable.

31. Transportation Appeals Parent v. North Haven BOE, Case # 11-2 While student claimed a medical condition, school records indicate that: No request was made from parent or medical provider to restrict student activities in school. Student regularly participated in physical education activities in school and during recess. On only two occasions in two years did the student see the school nurse for assistance with her medical issues.

32. Regional Transportation Services? • CGS 10-239 and 10-266 allow for district that obtain joint transportation bids for regular education to receive a rebate of documented savings • So far, according to the CSDE, no districts have taken advantage of this rebate

33. Regional Transportation Services? Anticipated Economic Benefit Greater bargaining power = lower price Economies of scale = reduced transportation costs, particularly for special programs

34. Regional Transportation Services? Unanticipated Costs/Consequences Lack of a common school calendar A common calendar could be a huge problem for parents (e.g., day care, work schedules, February vacation).

35. Regional Transportation Services? Unanticipated Costs/Consequences - Lack of a common school day - Different start times across districts - Increased length of trips

36. Special Education Rules of the Game Students with certain legally designated disabilities are entitled to a free, appropriate, public education including special education and related services. Money is no object.

37. Special Education – Least Restrictive Environment Students shall be educated with their nondisabled peers in regular classroom settings “to the maximum extent possible.” The requirement applies even if an outplacement would be less expensive, and, arguably, better for the child’s academic growth

38. Special Education – Least Restrictive Environment “Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 34 CFR 300.114 (a)(2)(ii).

39. Traumatic Brain Injury Other Health Impairment Specific Learning Disability Deaf-blindness Multiple Disabilities Developmental Delay (ages 3-9 only) Eligible Disabilities Intellectual Disability Hearing Impairment Visual Impairment Emotional Disturbance Language Impairment Orthopedic Impairment Autism

40. What is Special Education? Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Law does not contain any specific service or program mandates. But law’s broad requirements regarding educational progress affect content & cost of IEPs.

41. How a Special Education Dispute Begins The district offers an individualized education plan (IEP) at an annual meeting that includes staff, parents, and other necessary participants. Parents have an absolute right to reject the district’s offer and challenge its appropriateness.

42. How a Special Education Dispute Begins Why parents file: • Want district to pay for private services and/or their chosen expert/evaluator • Want the district to pay for private outplacement

43. How a Special Education Dispute Begins 43 Why parents file: • Want the district to place their child in regular classes to a greater extent than staff believes is appropriate • Want district to provide additional or more intensive services, such as PT and OT

44. How a Special Education Dispute Begins The district may also file for due process - • To override parents’ refusal to consent to a proposed evaluation • To defend an evaluation performed by the district or on the district’s behalf • To force a change in the student’s program that the parents have rejected

45. Dispute Resolution Mediation / Resolution Session Parents and the district shall convene a resolution session within 15 days to try to resolve their concerns prior to a hearing. The parties can agree to utilize the mediation process instead, or agree to waive both processes.

46. Mediation Can Be Unsuccessful Mediation is often successful, but not always. Reasons for failure include: • Unreasonable parent demands • Concerns about similar families learning of a favorable settlement • Honest disagreement about facts and/or programming

47. Proceed to Hearing? Not Always Egregious procedural error means the district can’t win • Eg. Failure to have an IEP in place • Eg. Holding PPT without parents present (unless district has taken significant steps) Think of these as Weingarten violations for special education

48. Proceed to Hearing? Not Always Identity of Hearing Officer (sad but true) The Hearing Officer has the legal authority to determine the appropriateness of evaluations, placement, IEPs, related services, in short, everything.

49. Proceed to Hearing? Not Always ATTORNEYS’ FEES!!! • If the district loses, including a finding of a serious procedural error even though the IEP is appropriate, the district must pay a substantial portion, or all, of the parents’ attorneys’ fees.

50. Rising Costs – Chasing Dollars Federal, state and local budgets under strain More focus on savings than ever