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The Illinois Law of School Residency Residency issues are increasingly the subject of concern for many school boards. With the disparities in educational services between districts, especially in affluent suburbs bordering major metropolitan areas, challenges to residency are becoming ever more frequent. The maze of Illinois residency law is complex, and usually the cases are fact intensive. In this report on the Illinois Law of School Residency, the focus is on (a) Orphans Act Children – when school districts can expect reimbursement when providing services in orphanages or other children's homes; (b) when school districts can expect reimbursement for providing services to out of state children placed in Illinois under the Orphans Act; (c) reimbursement issues for children placed residentially by a state agency or the courts for care and/or custody; and (d) residency issues under unclear scenarios. Sample policies and procedures are included as appendices. The definitions immediately below are from Article 14, of the Illinois School Code, which concerns disabled children. DEFINITIONS (Headings have been added and are not part of statue) I. RESIDENT DISTRICT IS THAT OF PARENT Sec. 14-1.11. (105 ILCS 5/14-1.11) Resident district; parent; legal guardian. The resident district is the school district in which the parent or guardian, or both parent and guardian, of the student reside when:
II. DIVORCED OR SEPARATED PARENTS In cases of divorced or separated parents, when only one parent has legal guardianship or custody, the district in which the parent having legal guardianship or custody resides is the resident district. When both parents retain legal guardianship or custody, the resident district is the district in which either parent who provides the student's primary regular fixed night-time abode resides; provided, that the election of resident district may be made only one time per school year. III. PARENT OR GUARDIAN OUT OF ILLINOIS When the parent has legal guardianship and lives outside of the State of Illinois, or when the individual legal guardian other than the natural parent lives outside the State of Illinois, the parent, legal guardian, or other placing agent is responsible for making arrangements to pay the Illinois school district serving the child for the educational services provided. Those service costs shall be determined in accordance with Section 14-7.01. (Source: P.A. 89-698, eff. 1-14-97.) IV. RESIDENT DISTRICT IS THAT OF STUDENT (105 ILCS 5/14-1.11a) Sec. 14-1.11a. Resident district; student. The resident district is the school district in which the student resides when:
V. WHEN TO APPLY THE DEFINITIONS (105 ILCS 5/14-1.11b) Sec. 14-1.11b. Resident district; applicability. The provision of Sections 14-1.11 and 14-1.11a shall be used to determine the resident district in all cases where special education services and facilities are provided pursuant to Article 14. (Source: P.A. 87-1117.) (emphasis added) Orphans Act Children This provision is located in 105 ILCS Section 14-7.03 and is entitled "Special Education Classes for Children From Orphanages, Foster Family Homes, Children's Homes, or in State Housing Units." The first part of the provision states that if a school district maintains special education classes on the site of an orphanage or children's home, or if the children from such homes (or foster homes or other state agencies or state residential units) attend classes for children with disabilities in which the school district is a participating member of a joint agreement[1], or if these children attend classes for children with disabilities maintained by the local school district, then reimbursement "shall be paid to eligible districts" in accordance with the provisions in the section. What is interesting about this part is the requirement that private facilities must provide "adequate space at the facility for special education classes provided by a school district or joint agreement for children with disabilities who are residents of the facility" and this space must be at no cost to the school district whenever the applicable district decides to request utilization of the space. School districts claiming reimbursement for a program operated as a "group program" must have an approved budget on file with the State Board of Education prior to initiation of the program. Districts claiming reimbursement for individual students must have the "eligibility of those students verified by the State Board of Education." There is some sentiment among special education administrators that operating a program under the "group" category allows for more flexibility, and certainly provides for allocation of some of the funds for overhead costs. Regardless, according to ISBE training materials on residency issues, children in such facilities or homes are the responsibility of the local district if they live, sleep and eat in the district. There are some distinctions, however, between who is responsible for serving the students and who actually pays for the services. Out of State Children Placed in Illinois There is a specific, rather innocuous paragraph in Section 14-7.03 that provides:
It is clear that the statute intends for children placed by out of state agencies not to be served by Illinois school districts unless payment is assured. Thus, while the last paragraph of 105 ILCS 5/14-8.01 states that a school district must serve all children, it is clear that the Orphan's Act intends to insure that school districts must have out of state pupil's funding assured before they may educate these children placed by out of state agencies. Children Placed Residentially by a State Agency or the Courts for Care/Custody The legislature has enacted a reimbursement provision for children placed residentially by a "state agency" or "the courts", for care or custody, or both care and custody, welfare, medical or mental health treatment, or both medical and mental treatment, rehabilitation, and protection. The statute says that "the costs for educating the student are eligible for reimbursement under this section providing the placing agency or court has notified the appropriate school district authorities of the status of student residency where applicable prior to or upon placement." (emphasis added) It is incumbent upon any placing agency, then, to ensure that the local school district where the receiving facility is located is "notified," preferably prior to placement, but in no instance later than immediately upon placement, that the child is now in that district. The district is then obligated to provide for the child, however, the child is not necessarily a bonafide "resident" of that district. In fact, it is clear that children placed by an "Illinois agency" or an "Illinois court" are likely continuing residents of the district where their guardians are located. This statute provides that if a child is placed in a particular district by an Illinois agency or Illinois court, the district where the child is placed is responsible to serve the child, but the child does not thereby become a resident of that district and instead, continues to be a resident of the district where the parent or guardian is located. Thus, in this category, districts where the child is located are obligated to serve, but do not become financially liable for serving, each qualified disabled child. Usually what happens is that the school district where the child is located begins serving a child and then commences sending bills to the district of residence. Occasionally, the district of residence balks at paying the bill sent by the district serving the child because, among other reasons, the district of residence was not fully "notified," or did not have a say in the placement. However, whether the district of residence had a say in the placement is not relevant for purposes of this statute. In fact, this issue was addressed in a 1999 case, Carbondale Community High School District #165 v. Herrin Community Unit School District #4.[2] In that case, a child was placed by an Illinois court at a Gateway facility in Carbondale. The Carbondale district immediately served the child and billed the Herrin school district for the costs. Herrin balked, indicating that they had previously expelled the child and therefore he had no right to services. The court indicated that the statute was clear, in that its purpose was to get the child out of the public school, which occurred in that case, and to encourage the child to seek rehabilitation, which was also done. Thus, even though the child had been previously expelled from the district of residence, that district was still obligated to pay the Carbondale district serving the child while he was in the substance abuse program, through a bonafide order entered by an Illinois court. There is an interesting dispute resolution process included in the statute for these children. The provision clearly states that "the district of residence of the parent, guardian, or disabled student as defined in Sections 14-1.11 and 14-1.11(a) is responsible for the actual costs of the student's special education program and is eligible for reimbursement under this Section when placement is made by a state agency or the courts." (emphasis added) The clause then goes on to say that payments must be made by the resident district to the district where the facility is located no less than once per quarter unless otherwise agreed in writing. When a dispute arises over the determination of the district of residence, there can be an appeal in writing to the State Superintendent. The decision of the Superintendent is final. There is also an 'automatic' clause for payment, providing that in the event that a district does not make a tuition payment to the district actually providing the special education services, "the State Board of Education shall immediately withhold 125% of the then remaining annual tuition cost from the state aid or categorical aid payment due to the school district that is determined to be the resident school district. All funds withheld by the State Board of Education shall immediately be forwarded to the school district where the student is being served." (emphasis added) The Superintendent of Education for our state of Illinois is reportedly reluctant to use this provision. "No Excuse" Provision – Special Education Safety Net At 105 ILCS 5/14-8.01, entitled "Supervision of Special Education Buildings and Facilities," It is stated that "room and board costs not provided by a state agency other than the State Board of Education shall be provided by the State Board of Education to the extent of available funds. (emphasis added). This an interesting "no excuse" provision, which is then repeated later in the same section, as follows:
At the end of Section 5/14-8.01, there is also the following "safety net" provision:
While this clause is located within Article 14, the language point to "all school age children" and makes no qualification that carves out special education pupils. Thus, Illinois school districts must serve all special education children who "reside" in a particular district, as that term is defined in Article 14. The "must serve" mandate also applies to children with substance abuse and alcohol problems who are not in the special education system:
Thus, even with children who are not identified as eligible for special education services, where a student is placed for chemical or alcohol dependence, the district where the student is located must serve the child, but is allowed to bill the district of residence for costs. Application of the Law in Grey Areas Consider the following facts:
Analysis: It could be argued that the Missouri Juvenile court order trumps the divorce court order, because all states must give "full faith and credit" to out of state orders that don't conflict with the laws of the receiving state, and all juvenile courts have a broad mandate to fashion relief in the best interests of court wards. So, we need to treat the Missouri order the same as we would treat an Illinois court order entered in the best interests of the child. And since it is apparent that the order was not entered for the SOLE reason of the minor taking advantage of the benefits of Illinois' free schools, it is an order with which we can comply. However, if this is a special education child, Section 14-7.03 might apply, and it says that any child who is not a resident of Illinois who is placed in a….foster family home…shall have the payment for his educational tuition and any related services assured by the placing agent. (emphasis added). The statute seems to allow Illinois districts to refuse to serve nonresident children whose costs are not covered by the out of state placing agency, and in this instance it is assumed this is the Missouri school district of residence. This position is strengthened by Section 14-1.11a(5) which says that the resident district is the school district in which the student resident when…an Illinois public agency has legal guardianship and has placed the student residentially outside of the school district in which the parent lives. (emphasis added). Remember: this only applies to special education children. And here, an Illinois agency did not make the placement. For non-special education pupils who are placed in substance or alcohol abuse programs, Section 5/10-20.12(a) says generally that the district where the child is located must serve the child but that district has the right to bill the district of residence for the costs. One might inquire if substance/alcohol abuse was one of the reasons for placing the child with his uncle. As is obvious, residency law is quirky. However, since the ISBE in its residency training materials for business managers says that any child who "lives, sleeps and eats" in the district generally must be served, our recommendation was to serve the child but notify the Missouri Juvenile court and the school district of the mother's residence that they will be billed for the costs. Please feel free to distribute these materials as you see fit; they are not copyrighted. APPENDIX "A" – SAMPLE POLICY RESIDENCY POLICY It is the intent of the ___________________ Board of Education to provide a free education through the secondary level to all eligible pupils who legally reside within its boundaries, in the hope that all bona fide residents of the District will be afforded fair and equal access to educational services under the Illinois Constitution, and pursuant to state law and regulations. The term "residence" shall apply to the location where the student actually lives on a full time basis. I. RESIDENT STUDENTS TUITION FREE EDUCATION A. The school district ("District") shall provide a tuition free education to those students who are legally residing within the boundaries of the District. Except in the case of students with special needs, students shall attend schools within residency areas to be determined by the District. Admission to the school within the residency areas shall be determined by the Superintendent or designee. B. Determination of Residency
C. Criteria for Establishing Residency The superintendent or designee of the school shall determine that the child is eligible for tuition free enrollment at the school based on one or more of the following:
NOTE: For criteria 5 and 6, the duty of the district to provide tuition free education to the child will cease on the day of the child's discharge from the foster home or residential treatment center. District will bill the district of residence of parent or guardian for services provide, per (D) below, if a disabled student is involved. D. Special Education Students For the purpose of serving special education students, a student, though not resident of the district, shall be deemed a resident of the district if the child resides within a district of the applicable joint educational cooperative. The co-op district of residence shall be responsible for all costs associated with the appropriate educational program of such students. The child shall, accordingly, be treated for residency purposes as if he or she resided within the school district. II. NON-RESIDENT STUDENTS
NOTE: For non-resident students admitted to District Schools, the school district shall under no circumstances assume responsibility for the transportation of these students.
III. PROCEDURES UPON ENROLLMENT
Failure to submit these documents may require the student to submit to a physical examination or face immediate exclusion from the school.
APPENDIX "B" – SAMPLE AFFIDAVIT STATE OF ILLINOIS AFFIDAVIT OF TRANSFER OF CUSTODY, CONTROL AND RESPONSIBILITY (I) __________________________________________ having first been sworn upon (my) (our) oath depose and state the following: That (I am) the parent(s) of ___________________________ age ______, and that (I) hereby willingly and voluntarily transfer full custody, control and responsibility of said minor to ____________________________ whose residence is ___________________________ (street address) City ___________________________, ________________ County, Illinois, within the territorial boundaries of ______________________ School District, #_________, _________________ County, Illinois. That said transfer is not solely for the purpose of attending the schools thereof. That (I) understand that while advice and consultation may be given, all decisions regarding this minor shall be made by______________________________. FURTHER YOUR AFFIANT SAYETH NOT. _____________________________ _____________________________ _____________________________ _____________________________ Subscribed and sworn to me before this _______ day of _____________, 2002 _____________________________ Any person who knowingly enrolls or attempts to enroll on a tuition-free basis whom the person knows to be a non-resident, or willfully presents false information regarding the residency of a pupil shall be guilty of a Class C misdemeanor, punishable by a fine of not more than $500 and imprisonment of not more than 30 days. [1] This refers to a joint agreement between school districts to pool their resources for the purpose of providing special education services. See 105 ILCS 5/10-22.31. [2]303 Ill.App.3rd 656, 708 N.E.2nd844, 134 Educ.L.Rep.538 |
