Special Education Case Law Update – Week of December 30, 2012
Jefferson County School District R-1 v. Elizabeth E., 2012 U.S. App. LEXIS 26608 (10th Cir. Dec. 28, 2012)
This case concerns a parents’ right to tuition reimbursement for an out-of-state residential treatment center and Spies, Powers & Robinson supported the parents’ efforts by assisting on an amicus curiae brief for the National Alliance on Mental Illness and National Alliance on Mental Illness Colorado.
Elizabeth was a student in the Jefferson County, Colorado school system with substantial behavioral and emotional issues which qualified her for special education services under the Individuals with Disabilities in Education Act (IDEA). Pursuant to mediated settlements with the Jefferson County School District (District), Elizabeth attended ninth and tenth grades at Humanex Academy, a private school in Colorado specializing in the education of children with significant learning disabilities and emotional and behavioral issues. In August 2008, the District agreed to pay tuition for Elizabeth’s 2008-09 year at Humanex and an Individualized Education Plan (IEP) meeting was to be convened later in that month for an evaluation of Elizabeth. However, as Elizabeth’s behavior at home began to deteriorate, the parents moved Elizabeth to the Aspen Institute for Behavioral Assessment in Utah. The parents notified the District of this change in placement.
The parents were then notified by Humanex that the District had withdrawn Elizabeth from Humanex because it was unwilling to incur her tuition costs while she was not in attendance, notwithstanding an agreement that Humanex was to refund the District for any months Elizabeth did not attend. Parents notified the District that they considered this to be a breach of the agreement whereby the District was to pay tuition at Humanex, but the District responded that its position was the since the parents had unilaterally placed Elizabeth out-of-state at Aspen, Elizabeth was no longer a District student and that the District had no on-going responsibility to Elizabeth under the IDEA.
In a letter dated November 10, 2008, the parents notified the District that they intended to enroll Elizabeth at Innercept, in Idaho, and seek reimbursement from the District for the costs of that placement. The District responded that it was in the process of evaluating Elizabeth when the parents placed her at Innercept and opposed reimbursement, but that it was “ready willing, and able” to provide Elizabeth with a free appropriate public education if she returned to the school district. After Elizabeth’s mother responded with an offer to work with the District to complete the IEP, the District again responded that because Elizabeth was unilaterally placed in Idaho, the District had no further obligation to evaluate Elizabeth or develop an IEP. Parents then requested an administrative due process hearing seeking reimbursement for the Innercept tuition. An Impartial Hearing Officer (IHO) concluded that the District had failed to offer Elizabeth a free appropriate public education and that the Innercept tuition was reimbursable. After an Administrative Law Judge (ALJ) affirmed substantially all of the IHO’s conclusions, the District then brought this action in federal Court. The district court affirmed the decision of the ALJ and this appeal to the Tenth Circuit Court of Appeals followed.
In determining whether tuition for a residential placement is reimbursable under the IDEA, the Court reviewed interpretations of the IDEA followed in other federal appellate circuits. Ultimately, however, the Tenth Circuit determined that no judicially created test to determine the right to reimbursement in this case was necessary because Elizabeth’s placement at Innercept was reimbursable based on a straightforward application of the IDEA’s statutory text. In so holding, the Court identified a four-step framework to apply in determining whether a unilateral private school placement was eligible for reimbursement: (1) whether the District provided or made a free appropriate public education (FAPE) available to the disabled child; (2) whether the private placement is a state-accredited elementary or secondary school; (3) whether the private placement provides special education, that is to say the placement provides “specially designed instruction . . . to meet the unique needs of a child with a disability;” and (4) if the private placement provided additional services beyond special education, whether such additional services can be characterized as “related services” under the act.
As for the first factor, the District did not challenge the finding that it failed to offer Elizabeth a FAPE on appeal. Additionally, for the second factor, the record showed that Innercept was an educational facility accredited by the state of Idaho, staffed by state-accredited teachers, and thus met the IDEA’s definition of a state accredited secondary school. On the third factor, the Court found that the District had not challenged the IHO, ALJ, or district court’s findings that Innercept provide specially designed instruction to meet Elizabeth’s unique needs, including several hours daily of traditional instruction supplemented by directed homework.
The Court then considered the fourth factor and whether various services for which Elizabeth’s parents sought reimbursement constituted “related services.” Central to the amount of the reimbursement request were costs for mental health services. The Court determined that these services were “related,” and thus reimbursable, because the mental health services were required for Elizabeth to benefit from the specially-designed educational instruction offered at Innercept.
The Court additionally rejected the District’s other arguments for denial or reduction of the reimbursement amount. The Court held that the parents provided sufficient notice to the District and that the parents’ failure to make Elizabeth available for an evaluation was without any effect given the District’s denial of any on-going obligation to Elizabeth. Further, even though the District stated it was ready, willing, and able” to serve Elizabeth under the IDEA, these communications did not meet the requirements contained in the IDEA for initiating or changing the placement or provision of a FAPE to Elizabeth. The order for the District to reimburse Elizabeth’s tuition for Innercept was affirmed.
D.E. v. Central Dauphin School District, 2013 U.S. Dist. LEXIS 626 (M.D. Pa. Jan 3, 2013)
D.E. attended school in Central Dauphin County School District from kindergarten through seventh grade. In kindergarten, his school file indicated he should have been placed in special speech and language therapy courses, but he was not placed in these courses by the District. Later in D.E.’s schooling over the years, the District committed a number of oversights and failures, including the failure to completely and properly evaluate D.E., mistakenly labeling D.E. as having mental retardation, and consistently denying D.E. extended school year services despite his eligibility, among other items.
Shortly after moving out of the District in D.E.’s eight grade year, D.E. parents brought a due process claim alleging that D.E. had not received a free appropriate public education (FAPE) during his time in the District. The hearing officer on the claim agreed, and awarded D.E. one hour of compensatory education for every hour of each school day attended in the District and additionally awarded fifteen hours of compensatory education for each of the six weeks of missed summer programs for the years 2000 to 2004. The parent was to decide, within parameters, how the hours should be spent. The order was not appealed.
The parent then filed this federal complaint seeking the monetary equivalent of nearly 10,000 hours of compensatory education awarded by the hearing officer and alleging violations of the Individuals with Disabilities in Education Act (IDEA), the Americans with Disabilities Act (ADA), and section 504 of the Rehabilitation Act. After motions practice on the pleading, only the ADA and Rehabilitation Act claims remained. To successfully assert an ADA or Rehabilitation Act claim in this context, the parent was required to show that the District intentionally discriminated against D.E.
The parent argued that the ADA and Rehabilitation Act claims were litigated before the hearing officer, that the hearing officer had found for the parent on those claims with resulting collateral estoppel effect, and that this federal case was merely to enforce the administrative decision. The federal Court ruled, however, that because the parent sought compensatory education for D.E. in the administrative hearing, and now sought monetary damages in federal court, that the doctrine of collateral estoppel (which precludes parties from re-litigating issues previously decided) did not apply as the relief sought was different. On this finding, the Court proceeded to review whether there was any triable issue on the ADA and Rehabilition Act claims.
The Court held that the parent had failed to show that the District intentionally discriminated against D.E. Intentional discrimination can be evidenced by bad faith, gross misjudgment and/or deliberate indifference. In this case, however, even though there was no dispute that the District had violated the IDEA due to the District’s delays and omissions in evaluating and offering services to D.E., those issues were insufficient to show intentional conduct in the ADA and Rehabilitation Act context. Further, the Court held that the parent had failed to present any nexus between D.E.’s disability and the District’s failure to provide a FAPE. The parent’s claims were dismissed.
M.D. v. The Board Education Of Beacon City School District, 2013 U.S. Dist. LEXIS 434 (S.D.N.Y. Jan. 2, 2013)
M.D. is a student diagnosed with language-based learning disabilities, dyslexia, anxiety, ADHD, and dysnomia (a verbal labeling deficit), among other diagnoses. He was classified by the Beacon City School District (District) as a student in need of special education, and that classification is not in dispute. During M.D.’s fifth grade year, M.D. began experiencing increasing anxiety and a psychiatric evaluation requested by the District determined that the anxiety stemmed from M.D.’s inability to keep up with school work. The evaluation recommended a small class setting for M.D. The parents then unilaterally removed M.D. from the District and enrolled him at Kildonan School, where M.D. remained for his fifth through eighth grades (2005-09).
The dispute in this case arises from the development of M.D.’s Individualized Education Plan (IEP) for 2009-10, his ninth grade school, out of which the parents raise claims of several procedural and substantive deficiencies arising under the Individuals with Disabilities in Education Act (IDEA). Through these claims, M.D.’s parents seek an order that the District reimburse them for tuition at the Kildonan School for the 2009-10 school year. An Impartial Hearing Officer (IHO) ordered reimbursement, and this decision was overturned by a State Review Officer (SRO) on the District’s appeal. The parents then asserted the claims in federal court.
Procedurally, the parents argued that the Committee on Special Education (CSE) convened to develop M.D.’s IEP lacked a general education teacher “who is or may be responsible for implementing a portion of the IEP.” Regardless of any technical violation of this requirement, the Court found that the parents had engaged in extensive dialogue with CSE members and had ample opportunity to express their dissatisfaction with the proposed IEP. Even presuming the lack of a proper general education teacher was procedurally inadequate, the parents were not harmed by the absence.
Additionally, the parents alleged they were procedurally harmed by the lack of discussion of goals for M.D. in the IEP process. Specifically, the parents pointed out that the goals in the final IEP were identical to the goals contained in the draft IEP developed prior to any CSE meetings and that those goals failed to account for M.D.’s present levels of performance. The Court agreed that under the IDEA, the District may not finalize an IEP before the start of a CSE meeting, however, the District is allowed to develop a draft IEP prior to the meeting. Further, the Court noted that the parents repeatedly made the District aware of their disapproval of the District’s proposed IEP and communicated that with they wanted the District to offer essentially a duplicate of what M.D. was receiving at the Kildonan School. The evidence showed that the District considered the parents’ suggestions and these suggestions were explicitly discussed in the final IEP. The Court held that the fact that the District staff ultimately disagreed with the opinions of the parents and their outside professionals does not mean that the parents were procedurally denied the opportunity to participate in the development of the IEP.
The parents also challenged the IEP on the substantive grounds that its proposal to place M.D. in an integrated co-teaching class (ICT) with 22- 25 other students was inadequate; in fourth grade, M.D. had previously been in a classroom of this size and experienced anxiety issues. The Court gave considerable deference to the SRO’s findings on this issue. The SRO weighed testimony from the parents’ experts that M.D. required a smaller classroom versus other testimony from the District noting the success of students with similar educational profiles to M.D. performing well in larger classrooms. The Court determined that the evidence on the record supported the SRO’s conclusion that the IEP was reasonably calculated to provide M.D. with educational benefits in this regard and that, in deference to the SRO, the Court was not at liberty to favor the testimony of the parents’ experts over that of the District in matters of educational policy. The parents’ claims for reimbursement were dismissed.