When a Connecticut child with developmental disabilities needs a residential placement to make educational progress, does the local school district have to pay for it, or is the Department of Developmental Services responsible because it already provides services to the child?

Plain-English summary

The Connecticut Department of Developmental Services (DDS) asked who has to pay when a developmentally delayed school-age child needs a residential placement to receive an appropriate education. The AG put the answer squarely on local school districts.

Under Conn. Gen. Stat. §§ 10-76a through 10-76h, local school districts (called local education agencies, or LEAs, under federal law) bear the legal duty to provide and pay for the special education and related services that disabled students need to make educational progress. That obligation is the state-law mirror of the federal Individuals with Disabilities Education Act (IDEA), which guarantees a free and appropriate public education (FAPE) to children with disabilities. When a planning and placement team (PPT), an independent hearing officer, or a court determines that a residential setting is necessary for the child to obtain education benefit, the residential placement is a "related service" that the school district must provide and fund.

The AG noted that DDS sometimes funds residential placements as a policy matter, and the AG was careful not to discourage that. But policy choice and legal obligation are different things. State law has never assigned the legal cost-of-residential-placement obligation to DDS, except in narrow contexts like the Birth to Three program. The AG cited the Second Circuit's decision in Mrs. B. v. Milford and the District of Connecticut's decisions in M.K. v. Sergi, Fetto v. Sergi, and Naugatuck Board of Education v. Mrs. D. as confirming that even where DCF or DDS is providing parallel services to a child, the school district remains the LEA and the cost-bearer for educational placements.

A few state-operated unified school districts are exceptions: USD #1 (Department of Correction), USD #2 (DCF facilities), and DDS' Birth to Three program. Outside those settings, the residential-placement bill goes to the district where the child resides.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The federal IDEA, 20 U.S.C. § 1400 et seq., requires states accepting federal special education funds to provide eligible children with a free appropriate public education. Connecticut has implemented IDEA through Conn. Gen. Stat. §§ 10-76a through 10-76h, with the U.S. Department of Education's full approval of Connecticut's Part B plan. Under that scheme, the LEA (the local school district where the child resides, up through age 21 or graduation) must convene a planning and placement team to determine whether the child has a disability, what specially designed instruction is required, and what "related services" (transportation, counseling, sometimes residential placement) are needed for the child to benefit from the educational program.

Parents who disagree with a PPT decision have several review avenues: a due process hearing before an independent officer appointed by the State Department of Education, mediation, the federal complaint resolution process under 34 C.F.R. §§ 300.151 et seq., or court review under § 10-76h and 20 U.S.C. § 1415. The Second Circuit in Mrs. B. v. Milford held that when a residential placement is necessary for a student to make meaningful educational progress, it is a "necessary related service" and the school district must pay for it. The District of Connecticut elaborated in Fetto v. Sergi that DCF's involvement in providing collateral services to a child does not transfer LEA status or financial responsibility to DCF. Naugatuck Board of Education v. Mrs. D. applied the same logic to a DCF-initiated residential placement and rejected the school district's attempt to push the bill back onto DCF.

Connecticut has only a few state-run "unified school districts" that act as LEAs themselves: USD #1 for students in Department of Correction custody, USD #2 for students in certain DCF facilities, and DDS' Birth to Three program. The IDEA regulation at 34 C.F.R. § 300.2(b) does extend IDEA duties to other state agencies, but only when those agencies are actually "provid[ing] special education and related services to children with disabilities," which is not the case for DDS outside Birth to Three.

Common questions

When does a residential placement become a school district's responsibility instead of just a DDS service?

When a PPT, due process hearing officer, or court finds that the residential setting is necessary for the child to obtain educational benefit. At that point the placement is a related service under IDEA and Connecticut's special education statutes, and the school district where the child resides is responsible for both arranging and paying for it.

Does it matter that DDS is already providing services to the same child?

No. Fetto v. Sergi held that the fact that one state agency (in that case DCF) is already providing services to the child does not turn that agency into the LEA or shift IDEA cost responsibility. The same logic applies to DDS. The Second Circuit's decision in Mrs. B. v. Milford makes the school district's payment obligation independent of any other agency's voluntary involvement.

What if DDS has been voluntarily paying for the residential placement up to now?

DDS and other agencies sometimes choose, as a matter of policy, to fund residential placements. That choice is permissible and the AG explicitly did not discourage it. But it is not a legal obligation, and the school district cannot rely on continued DDS funding when the educational need exists. Once the child's needs require a residential placement for educational reasons, the LEA is on the hook.

Who decides whether a residential placement is "necessary" in the first place?

The PPT in the first instance, with parents on the team. If parents or others disagree, the dispute goes to a due process hearing, complaint resolution, mediation, or eventually to court. The legal standard is whether the residential environment is necessary for the child to make meaningful educational progress.

Are there exceptions where the state, not the local district, pays?

Yes, but they are narrow. State-operated unified school districts (USD #1 in Department of Correction facilities, USD #2 in certain DCF facilities) act as the LEA for students in their custody, and DDS is the LEA only for the Birth to Three program. Outside those settings, the local school district where the student resides is the LEA and the payer.

Can the legislature change this allocation?

Yes. The AG specifically noted that the General Assembly is free to assign residential placement responsibility elsewhere as a matter of policy. The 2016 opinion describes the law as it stands; it does not lock in the funding allocation against future legislative change.

Citations

Statutes and regulations

• Conn. Gen. Stat. § 10-76a(4) (definition of special education / specially designed instruction)
• Conn. Gen. Stat. § 10-76a(7) (related services)
• Conn. Gen. Stat. § 10-76d (LEA obligation to provide special education)
• Conn. Gen. Stat. § 10-76g (state reimbursement of certain costs)
• Conn. Gen. Stat. § 10-76h (due process hearings)
• Conn. Gen. Stat. § 18-99a et seq. (USD #1)
• Conn. Gen. Stat. § 17a-37 (USD #2)
• Conn. Gen. Stat. § 17a-248d et seq. (DDS Birth to Three program)
• 20 U.S.C. § 1400 et seq. (Individuals with Disabilities Education Act)
• 20 U.S.C. § 1401(9) (FAPE definition)
• 20 U.S.C. § 1401(19) (LEA definition)
• 20 U.S.C. § 1401(26) (related services)
• 20 U.S.C. § 1415(e), (f) (procedural safeguards)
• 34 C.F.R. § 300.2(b) (public agencies bound by IDEA)
• 34 C.F.R. §§ 300.151 et seq. (state complaint resolution process)

Cases and prior opinions

• Mrs. B. v. Milford, 103 F.3d 1114 (2d Cir. 1997) (residential placement as related service when needed for educational benefit)
• M.K. v. Sergi, 554 F. Supp. 2d 201 (D. Conn. 2008)
• Fetto v. Sergi, 181 F. Supp. 2d 53 (D. Conn. 2001) (DCF involvement does not transfer LEA status)
• Naugatuck Board of Education v. Mrs. D., 10 F. Supp. 2d 170 (D. Conn. 1998) (residential placement was educationally necessary; school district responsible)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2016/2016-01_residential_services-pdf.pdf?rev=67adef4663cc4657b784736f23406449

Original opinion text

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

GEORGE JEPSEN
ATTORNEY GENERAL

Office of the Attorney General
State of Connecticut

January 25, 2016

Morna A. Murray, Commissioner
Connecticut Department of Developmental Services
460 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Murray:

In a memorandum from your agency's Director of Legal & Governmental Affairs, written on your behalf, you have inquired about the responsibility of local school districts to provide and pay for residential services when such residential services are necessary for a developmentally delayed, school aged student to receive an appropriate education if the student is receiving services from the Connecticut Department of Developmental Services ("DDS").

The answer to your question is found in the general policy determinations of our Legislature as reflected in our general statutes. Therefore, we review those statutes and the cases interpreting them as a way to address your question.

Conn. Gen. Stat. § 10-76d codifies the legal obligations of school districts to provide and pay for the special education programming needed for disabled students in their respective public schools, subject to certain state statutory reimbursements for particular programs and costs (see, e.g., Conn. Gen. Stat. § 10-76g). This detailed statutory scheme, set forth in Conn. Gen. Stat. §§ 10-76a through 10-76h, is consonant and compliant with the federal special education law known as the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq. ("IDEA") and its underlying regulations, as reflected in the full approval status of Connecticut IDEA Part B plan by the United States Department of Education.

Under Connecticut's statutory scheme, local school districts (referred to as "local education agencies" ("LEAs") under the IDEA; 20 U.S.C. § 1401(19)) bear the legal obligation to provide the necessary "special education" (specially designed instruction (Conn. Gen. Stat. § 10-76a(4)) and "related services" (Conn. Gen. Stat. § 10-76a(7)) to enable a child to attain educational progress. Collectively, this concept of necessary special education and possible related services designed to enable a child to obtain education benefit, is referred to as a "free and appropriate public education" ("FAPE"). 20 U.S.C. § 1401(9). LEA "planning and placement teams" ("PPTs"), whose makeup is mandated by law, must make individualized, fact based determinations as to whether a child is in need of special education (which may include related services (20 U.S.C. § 1401(26)), and if so, what those special education (e.g., modified instructional goals and strategies) and possible related services should be. A parent or guardian aggrieved by a PPT decision on these issues, or by an LEA's identification of the student as disabled and/or in need of special education, has various avenues to seek review. These avenues include review after a full hearing by an independent hearing officer appointed by the State Department of Education ("SDE"), followed by possible review by a state or federal court, or mediation with the assistance of SDE. Conn. Gen. Stat. § 10-76h, 20 U.S.C. § 1415(e), (f). State educational agencies must also offer a complaint resolution process ("CRP"). 34 CFR §§ 300.151 et. seq. In addition to providing an alternative avenue for reviewing a PPT's decision, the CRP also offers an expeditious means for enforcing determinations made by a PPT, a due process hearing officer or a court regarding which special education and related services are required for a particular child.

In Connecticut, there are only limited circumstances in which the state is responsible for providing necessary special education and related services to students so entitled. These include students served under state law by state operated "unified school districts" ("USD"), including USD #1 (serving students in the custody of the Department of Corrections, Conn. Gen. Stat. §§ 18-99a et seq.); USD #2 (serving students in certain Department of Children and Families ("DCF") facilities, Conn. Gen. Stat. § 17a-37); and DDS' Birth to Three program, Conn. Gen. Stat. §§ 17a-248d et seq. (which no longer uses the "unified school district" moniker). In Connecticut the LEA responsible for providing any necessary special education and related services is the district in which the school-aged student (up to the end of the school year in which he or she turn 21 or until graduation, whichever occurs first) resides.

As your inquiries suggest, because developmental delay qualifies as a "disability" cognizable under the state and federal special education laws and regulations, instances can and do occur where DDS has been or will be providing services to a school-aged child who also qualifies for special education, and thus is entitled to FAPE from his or her school district. The question then arises whether the services DDS may have been providing or is planning to provide are in fact "necessary related services" under the IDEA, and thus the programmatic and fiscal responsibility of the LEA, and not DDS. The nature of such services can be quite varied, depending on the needs of the child, but can certainly include residential services.

In determining whether a particular service, possibly including residential services, is a necessary related service under the special education laws, and thus the fiscal and programmatic responsibility of the LEA, the key factual inquiry a PPT must address is whether the service is necessary for the child to obtain education benefit from his or her education program. Mrs. B. v. Milford, 103 F.3d 1114, 1120-22 (2d Cir. 1997) (If a residential placement is needed to enable the student to achieve meaningful education progress, it is a necessary related service and the school district must pay for it); M.K. v. Sergi, 554 F. Supp. 2d 201, 222-5 (D. Conn. 2008).

The interplay of the provision of non-educational services by a state agency and the provision of special education and related services by an LEA to the same child was explained at length in Fetto v. Sergi, 181 F. Supp. 2d 53 (D. Conn. 2001). In Fetto, which involved DCF, the Court aptly noted that:

the fact that the DCF arranged for services that impacted the plaintiff's educational performance and abilities does not result in its being responsible for the child's education under the IDEA. Even if some of the services provided by the DCF would also qualify as "related services" under the IDEA, the fact that the DCF provided them does not make the DCF the LEA for the plaintiff, even though the West Haven Board of Education may have benefitted because it did not need to provide the services directly. Doing so would burden the DCF with the financial responsibility for providing an appropriate education to children assisted by its programs. It also may discourage state agencies like the DCF from providing support services for children whose education is subject to the IDEA. . . . If [plaintiff] . . . believed that the related services were deficient, he could pursue his remedies against the Board, his LEA. Even though the Board may benefit at times from the involvement of the DCF, it still is ultimately responsible for compliance with the IDEA, including assuring that the related services are appropriate and properly delivered.

Id. at 71. Equally instructive on this point is the Court's decision in Naugatuck Board of Education v. Mrs. D., 10 F. Supp. 2d 170 (D. Conn. 1998). At issue in Naugatuck was whether a residential placement, initially made by DCF, was actually required as a related service under the IDEA and thus the responsibility of the LEA. The due process hearing officer had ruled that the student needed a residential placement in order to benefit from his educational program, and thus was the fiscal and programmatic responsibility of the school district. Affirming the hearing officer's decision, the District Court determined the school district was attempting to "shift its potential financial responsibility for M.L.'s residential placement onto DCF." The Court was "not persuaded by Naugatuck's claims." Id. at 177-178. As the Naugatuck Court described it:

DCF's involvement in M.L.'s residential placement does not lessen Naugatuck's responsibilities under the IDEA. . . . had . . . Naugatuck . . . placed M.L. in a residential facility, DCF likely would never have gotten involved in this case. DCF became involved at Mrs. D.'s behest, only after Naugatuck determined that a residential placement was not necessary for educational reasons. If the court were to overturn the hearing officer's decision, in the future Naugatuck could refuse to place any special education students in a residential placement and instead wait for another state agency, such as DCF, to step in and pay for placement in a residential facility. Such a perverse incentive would be most harmful to those students in need of immediate residential placement.

Id. at 179-180.

Succinctly stated, where a PPT, a due process hearing officer or a court determines that a residential environment is needed for a student to make educational progress, it is the school district's duty to provide it. Mrs. B. v. Milford Board of Education, 103 F.3d at 1121. This conclusion does not rest on any change in the law governing allocation of responsibility for funding a residential placement. The relevant statutes have never imposed that responsibility on DDS (or its predecessor agencies) as a legal obligation.

Our understanding is that on occasion DDS or other agencies have chosen as a matter of policy to provide fiscal support for residential placements. That policy choice was and remains one that the agency may properly make and nothing in our legal opinion should be read to suggest that state agencies and officials should not when they can seek to identify available and appropriate resources to support children, their families and the districts that serve them. But it is not, for the reasons set forth above, compelled to do so by law.

The determination of a PPT, a hearing officer or a reviewing court that an LEA is fiscally responsible under our special education laws for a particular child's residential services can of course place significant financial pressure on a school district. This can especially be so where the responsibility for a particular child is new to a school district, such as when a child's needs have changed or when the child's residential placement has previously been provided and/or paid for by others, including parents or state agencies like DDS. However, in my view the statutes are quite clear and the General Assembly is free to assign the responsibility for these services elsewhere if it chooses to do so as a matter of policy.

Also, although DDS has no legal obligation to provide or pay for any special education or related services under Connecticut law (leaving aside the Birth to Three program) it may of course have valuable insights and information regarding a particular child, including the child's history with DDS. This information may assist and guide an LEA's PPT in planning special education and related services for that child and help ensure proper coordination between any DDS non-educational services and the school district's special education and related services. As you know DDS personnel often are invited to participate in PPTs, and they may, with appropriate releases, share such insights and information.

We note that local school districts sometimes assert that IDEA responsibilities devolve onto state agencies, noting the IDEA regulations, which provide that the law's requirements "are binding on each public agency in the State," and public agencies are defined to include "state educational agencies" (in Connecticut SDE), LEAs, and "other state agencies and schools." 34 C.F.R. § 300.2(b). The key however is that the public agency must be "provid[ing] special education and related services to children with disabilities . . . ." Id. Thus special education duties do devolve onto SDE at the state operated vocational high schools, DCF at USD #2 schools, the Department of Corrections at USD #1 schools, and DDS in its Birth to Three program, but not otherwise, since under Connecticut's approved IDEA Part B plan, as reflected in Conn. Gen. Stat. § 10-76d, with these exceptions, the duty to provide special education and related services is assigned to LEAs.

We trust this addresses your question. Please let us know if you require further information.

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL