Hous! State of Oklahoma December 17, 2015 Attorney General Scott Pruitt 313 NE 21st Street Oklahoma City, OK 73105 RE: Opinion request regarding on-site educational services at day treatment facilities Dear General Pruitt: ‘The Oklahoma Constitution provides that our system of free public schools shall be open toall the children of the State. Of course, that does not mean that every public school in the state is obligated to provide educational services to any school-aged child regardless of the circumstances. Consequently, state law determines which public school district is responsible for providing educational services to a child. Title 70 OS. §1-113 establishes how to determine residency for children for school purposes, including children who are receiving mental health treatment ata day treatment program, partial hospitalization program or day hospital program (Day Treatment Program or Program). It has come to my attention over the last several months that application of the residency statute and the laws governing the responsibilities of public school districts pursuant to the residency statute are inconsistent across the state and that some districts interpret the requirements of these and related laws and administrative rules differently. As such, | am seeking a legal opinion from your office on the statutes and administrative rules as they relate to the provision of on-site educational services to children admitted to and receiving treatment at Day Treatment Programs. 1. Inyour opinion, what was the intent of the Legislature in establishing residency for school purposes for children in Day Treatment Programs pursuant to 70 0.5, §1-113(A)(6) and 70 OS. §3-104.7? 2, Isa public school district required by law to provide on-site educational services to children in a Day Treatment Program, as defined in 70 0.5. §3-104.7, 10 0S. §175.20.A, OAC 210:35-31-2 and/or OAC 310:667-57-1, when the Program facility is physically located within the boundaries of the district pursuant to OAC 210:35-31-3(f) and/or OAC 210:35-31-5(c)? 3, Ifthe answer to the second question is yes, are children in a Day Treatment Program facility located within the boundaries of the public school district lered residents of the district pursuant to 70 0.S. §1-113(A)(6), OAC }:35-31-3(e) and by incorporation 70 0,5. §1-114? 4, Ifthe answers to the second and third questions are yes, such that residency for children for school purposes is established through subsection (A) of 70 0S. §1-113, can the provisions, limitations or requirements of 70 0.S. §1- 113(D) or 70 0.S. §1-113(F) ever apply to Day Treatment Programs? 5. Ifthe answer to the second question is no and the answer to the fourth question is yes, can a Day Treatment Program facility rely on 70 0.S. §1- 113(F) to contract for on-site educational services for children in the Program facility given that (F) applies only to facilities listed in subsection (D) and only to residential facilities? 6. Ifthe answer to the second question is no, does state law authorize a Day ‘Treatment Program to contract with a public school district or other educational service provider for on-site educational services for children if the Program facility is located outside the boundaries of the district, pursuant to 70 OS. §3-104.7 and the rules of the State Board of Education, the Oklahoma Health Care Authority and the Department of Mental Health? 7. Ifthe answer to the second question is no, is any public school district legally responsible for providing on-site educational services for children ina Day ‘Treatment Program facility pursuant to 70 0.S. §3-104.7, OAC 450:17-5-34 and/or OAC 450:27-7-34? 8. Ifthe answer to the seventh question is yes, what determines which public school district is responsible for providing on-site educational services to children in a Day Treatment Program? 9. Cana Day Treatment Program be held accountable for the absence of a contract with a public school district for the provision of on-site educa services for children when the Program has made a good faith effort to contract with the responsible district but the district refuses to contract with the Program? 10, What legal remedies are available to a Day Treatment Program when the responsible public school district refuses to provide on-site educational services to children in the Program facility? 11, What legal remedies are available to a parent of a child in a Day Treatment Program when the responsible public school district refuses to provide the on-site educational services to which their child is entitled? 12, Does 10 0.5, §175.20 prohibit a public school district from classifying and administering its on-site educational services to children at a Day Treatment Program, as defined in Title 70, Section 3-104.7, as an alternative school or alternative education program? nal13. If the answer to 12th question is yes, which state agency has the authority to enforce the prohibition and does that agency have the responsibility to take action to enforce the prohibition? 14. Does the analysis contained in 2009 OK AG 15, 9 of the meaning of educational services as used in 70 0S. 1-107 apply to on-site educational services for children in Day Treatment Programs? 15. s the responsible public school district responsible for occupational, physical and speech therapy, academic instruction, meals, and transportation pursuant to OAC 317:30-5-241.2(e)(4), OAC 210:35-31-3 or other laws or rules? 16. Under state law and OAC 210:35-31-1 through 210:35-31-7, is the responsible public school district or the Day Treatment Program responsible for the education plan, supervision of school district teachers, the academic content of educational services, classroom supervision and student discipline, which are part of the on-site educational services provided by the district to children at a Program facility? 17. What state agency is responsible for enforcing the requirements addressed in questions 14, 15 and 16? 18. Is the provision of on-site educational services for children in a Day Treatment Facility by a responsible public school district, including but not limited to those specific services addressed in previous questions, a requirement for state accreditation of public schools and districts? 19.15 a public school district, including its Board of Education and employees, legally obligated to conform to and comply with district policies that have been voted on and approved by the district's Board of Education? 20. Is a responsible public school district and its officials protected from the consequences of refusing to provide on-site educational services to children ina Day Treatment Program as required by law if the district and its officials rely on a legal opinion by an attorney that is in conflict with the law? 21. Do employees of state agencies and political subdivisions such as public school districts have whistleblower protection and, if so, what actions or disclosures are protected, to what protections is an employee entitled and what must an employee do to receive protection? On January 18, 2011, after being informed that certain public school districts in Tulsa County had chosen to disregard certain duties assigned to districts by state law, you wrote to district officials informing them that: “[NJo executive officer has the right to simply ignore the directives contained in such laws. ... It is the duty of public officers to obey such laws... . Willful neglect or disobedience to performing duties established by Law exposes you and members of your Board of Education to legal liabilities, both official and personal.” At this time, the Oklahoma City Public School District is refusing to provide on-site educational services to children in at least one Day Treatment Program, as definedin Title 70, Section 3-104,7, that is located within the boundaries of the district. If, in your opinion, the answer to the first question is yes, I respectfully request that your office initiate whatever action is necessary to address the failure of the district to provide on-site educational services to children in Program facilities and to hold accountable those district officials who are responsible for its failure to provide on- site educational services to which the children in the facilities are entitled. Thank you for your attention to these questions. Please contact me if you or your staff should need clarification on any question. State Representative Enclosures: 1.) Holmes legal opinion (2 pages) 2.) AG Pruitt letter (2 pages)From: Laura Holmes Date: September 17, 2015 at 3:51:58 PM COT To: "senatorfloy4@gmail.com" , "floyd @oksenate gov" Gee tneu, Robert 8 (rneu@okcps.org)" , "Brandon M. Carey" , “Bell, Teri (tlbell@okcps.org)" ‘Subject: Oklahoma City Public Schools - Residential Facilities Senator Floyd: | am outside legal counsel for Oklahoma City Public Schools and have been asked to respond to an issue you raised regarding whether school districts must contract with residential and day treatment facilities that are located within the school district's boundaries. This issue is not a new one for Oklahoma City Public Schools. Based on my legal analysis of the issue set forth below, the District is currently unwilling to contract with Positive Changes to provide educational services to the students placed in the facility located within the District's boundaries. 70 O.S. §1-113 requires school districts to provide educational services to students who are residents of the school district. The statute lists several categories of residency, and, as a result of Representative Nelson's bill (HB 2069), includes a residence as a facility where a child has been admitted and is receiving on-site educational services as part of a partial hospitalization program, day treatment program, or day hospital program. The statute also provides that the school district where these types of entities exist “shall, upon request of the individual or agency operating the entity, provide the educational services to which the children in the entity are entitled ..." 70 O.S. §1-113(F)(1). This sentence is likely read by many to Fequire a school district in which a residential or day treatment facility is located to provide the O _ izational services to the children in the facility. However, the statute also provides that the entity may contract with another school district if a) the school district in which the residential facility is located agrees in writing to allow another school district to provide the educational services or b) the residential facility contracts with another school district for the provision of ‘educational services to be provided through remote Intemet-based courses. 70 O.S. §1- 143(F 1), Statutory interpretation focuses on legislative intent which is ascertained from the whole act in light of its general purpose and objective and considering the relevant provisions together so as to give full force and effect to each part. When interpreting a statute, a court is to presume that the Legislature has expressed its intent and that it intended what it expressed. Walker v. Group Health Services, Inc., 37 P.3d 749, 758-759, 2001 OK 2, {| 24. Although the use of the word “shall” is generally considered a legislative command, the term can be permissive depending on the context and interpretation. /d. at 759, 9] 25. Section 1-113(F) utilizes the mandatory language of “shall” but then proceeds to provide that the entity can contract with another school district other than the one where it is located. If the law was intended to mandate that a school district in which the residential facility is located provide educational services, then the law would have no provisions to allow a residential facility to contract with any other school district or to provide services through remote Internet based courses. Case law supports this conclusion as discussed in Southern Corrections Systems, Inc. v. 0 Union City Public Schools, 64 P.3d 1083, 2002 OK 93, where the school district in which the facility was located chose not to provide the educational services and those services were provided by another school district. If the Oklahoma Legislature had intended for the schoo! district where the facility was located to be required to provide the educational ‘services, there° would have been no need to include language allowing the facility to contract with ancther school district. In coordination with and as further guidance in relation to this statute, the State Department of Education ("SDE") has adopted regulations governing educational services in residential treatment programs. OAC 210:10-1-13. The regulation provides that a contractual agreement for the provision of educational services will be developed and signed by the school district and the chairman of the board of the residential facility. OAC 210:10-1-13(d). This legal argument regarding the interpretation of the statute was agreed to by the SDE and upheld in the case of Camelot Schools, Inc. v. Ind. Schl. Dist. No. 89, District Court of Oklahoma County, Case No. CJ-2008-1154. Plaintiff sought a temporary and permanent injunction to require the District to contract with it for educational services. When the District refused to do so, Plaintiff sought a court order requiring such a contract. Judge Vicki Robertson denied Plaintiff's requested relief, and the case was ultimately dismissed. For your reference, | have attached the District's Objection, SDE’s Answer, and the Journal Entry of Judgment. Positive Changes or any other day treatment or residential facility has the option of providing educational services through remote Internet-based courses. Currently, there are a number of statewide virtual charter schools, and students in these types of facilities could be enrolled in those charter schools which cannot discriminate on the basis of disability and must accept these students. Students also have the option of receiving services from their home schools through home-based instruction, part-time enrollment, or Internet-based courses. Alternatively, the residential and day treatment facilities may elect to create a private school to provide educational services to the students they serve as Special Care has done. Clearly, Positive Changes and the students who are placed there have options other than the District for their education. As an aside, my law partner, Andy Fugitt, says “Hil” | missed Annette and Steve's Beer and Brat party this year which is where | usually see you. If you would like to discuss my analysis, please contact me at your convenience. Laura L. Holmes ‘The Center for Education Law, P.C. 900 N. Broadway, Suite 300 Oklahoma City, OK 73102 (405) 528-2800 (405) 528-5800 (facsimile) LHolmes@efel.comOrrice OF ATTORNEY GENERAL STATE OF OKLAHOMA January 18, 2011 Dr. Cathy Burden ‘Superintendent, Independent School District 9 Union Public Schools 8506 East 61° Street___ Tulsa, Oklahoma 74133 Re: Lindsey Nicole Henry Scholarships for Students With Disabilities Act, 70 0.S. Supp. 2010, §§13-101.1 ef seq. GREETINGS: | am certain you are aware that in its last session the Oklahoma Legislature enacted the Lindsay Nicole Henry Scholarships for Students With Disabilities Act, 70 O.S. Supp. 2010, §§13-101.1 ef seq., empowering parents of children with disabilities for whom an individualized education program is required pursuant to the Individuals with Disabilities Education Act, to exercise an option to obtain scholarship monies from the local schoo! district in which they reside to fund their child's enrollment and attendance in a private school approved by the State Department of Education. | am informed that though eligible parents have notified your District and chosen to exercise their right and option under the Act to place their eligible child in a private school, your school district has chosen to disregard its duties under the referenced Act to provide funds to the eligible private school in accordance with the Act. | am also informed that your decision is continuing in force and effect as of the date of this correspondence. Laws enacted by the Legislature express the collective will of the People of Oklahoma, are presumed Constitutional, and no executive officer has the right to simply ignore the directives contained in such laws. In this State, only the Courts may authoritatively determine the Constitutionality of our laws. It is the duty of public officers to obey such laws unless and until such laws are determined by Courts to be unconstitutional, Willful neglect or disobedience to performing duties established by Law exposes you and members of your Board of Education to legal liabilities, both official and personal. 313 N.B. 21" Sraner + Oxtaoma Cry, OK 73105 + (405) 521-3921 + Fax: (405) 521-6246 © rooyciodparorPlease be advised that unless you notify me by no later than Monday, January 24, 2011, that you will discontinue your present course, and promptly execute the duties of your School District set forth in the Act and promptly give scholarships for the period for Which they were requested, | will take such legal action available to me as Attorney General of Oklahoma as appropriate to enforce the requirements of Law. Very respectfully yours, 4 ruitt Attorney General of Oklahoma ESP:sih Co: Ed Payton, Chairman of the Board for Union Public Schools Janet Barressi, Oklahoma State Superintendent of Schools