Is the school responsible to fund residential placement?
Residential Placement and Schools responsibility
RESIDENTIAL PLACEMENT FOR SPECIAL EDUCATION STUDENTS: WILL YOUR DISTRICT HAVE TO PAY?
Today, districts are frequently presented with requests from parents to fund their disabled children’s residential placements.
REIMBURSEMENT FOR RESIDENTIAL PLACEMENT UNDER THE IDEA: THE DISTRICT’S OBLIGATION AND THE COURT’S ROLE
“If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education [FAPE] available to the child in a timely manner prior to that enrollment.” Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1412(a)(10)(C)(ii) (emphasis added) 1
If a school district determines that an eligible child cannot receive FAPE from the programs that the public agency conducts, and, therefore, “[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non- medical care and room and board, must be at no cost to the parents of the child.” 99 C.F.R. § 300.302.
Read together, these provisions indicate that if even where a parent unilaterally places his child in a residential placement, if that placement is necessary to provide FAPE to that child and if FAPE cannot be provided within one of the school district’s programs, then the court or hearing officer have the discretion to require the school district to fund that placement.
REIMBURSEMENT FOR PRIVATE PLACEMENT DAY AND RESIDENTIAL PLACEMENT MAY BE AWARDED EVEN IF THE STUDENT WAS NOT PREVIOUSLY IDENTIFIED AS QUALIFYING FOR SPECIAL EDUCATION
A District may be required to reimburse the parent for the cost of private school placement if a court or hearing officer finds the district has not made a FAPE available to the student in a timely manner prior to the enrollment in a private placement and that the private placement is appropriate for the child. School Committee of Town of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985).
A hearing officer or court may find the private placement to be appropriate even if it does not meet the State standards that apply to SEAs and LEAs. Florence County School District Four v. Carter, 510 U.S. 7 (1993).
Both Burlington and Carter involved students who had previously received special education services from the public school district.
At the time Burlington and Carter were decided, the IDEA did not specifically address private school tuition reimbursement. Instead, the court relied on language in the IDEA which gives courts broad authority to grant “appropriate” relief when a school district fails to provide FAPE.
Since then, the Supreme Court has interpreted the IDEA authorizes parents of disabled children to seek reimbursement for private school tuition, regardless of whether the child had previously received special education services through the public school system. See Forest Grove School District v. T.A., 2009 WL 1738644 (June 22, 2009).
In T.A., the Court noted that although the students in Burlington and Carter had previously received special education services from the public school, the decisions in those cases “in no way depended on their prior receipt of services” and therefore applies regardless of whether the student has previously received special education services. Id.
The Court specifically opined that “when a child requires special education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Id.
REQUIREMENTS FOR REIMBURSEMENT UNDER IDEA: THE SPLIT AMONG THE FEDERAL CIRCUIT COURTS
The Third Circuit
In Kruelle v. New Castle County School District, 642 F.2d 687 (3d Cir.1981), the Third Circuit ruled that whether a public school district is required to reimburse parents for a private residential placement depends “on whether full-time placement may be considered necessary for educational purposes, or whether the residential placement is a response to medical, social or emotional problems that are segregable from the learning process.”
Court held that the parents there were entitled to reimbursement for the residential placement of their mentally retarded child with cerebral palsy who needed assistance with basic skills such as speaking, walking, dressing himself, eating unaided, and using the toilet. Id. at 688–89, 693–95.
The court noted that, where a child is afflicted with such severe conditions, formal education begins with such basic life skills. Id. at 693.
The Fourth, Fifth, and D.C. Circuits have adopted the Kruelle approach. See Burke Cnty. Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir.1990); Tenn. Dep’t of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1471 (6th Cir.1996); McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C.Cir.1985).
Ninth Circuit:
In Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635 (9th Cir.1990), the Ninth Circuit ruled that reimbursement under the IDEA for a residential placement depends on “whether [the child’s] placement may be considered necessary for educational purposes or whether the placement is a response to medical, social, or emotional problems that is necessary quite apart from the learning process.” Id. at 643 (emphasis added).
Clovis involved the placement of a child in an acute care psychiatric hospital. See id. at 639. The school district sent educators to the hospital for 1–2 hours of instruction per day. The court denied reimbursement because the services provided by the hospital were medical in nature, including six hours of intensive psychotherapy per day. Id. at 645–47.
Fifth Circuit:
The Fifth Circuit recently reviewed the various circuits’ respective tests and came up with a test of its own in Richardson Independent School District v. Michael Z, 580 F.3d 286 (5th Cir.2009).
Michael Z. involved a child who was placed by his parents in a private residential treatment center. The court adopted the following test: “In order for a residential placement to be appropriate under IDEA, the placement must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education.” Id. at 299.
Because the district court had not issued findings of fact related to the second prong of the test, the court remanded for the district court to consider that issue.
Seventh Circuit:
In Dale M. v. Board of Education of Bradley–Bourbonnais High School District No. 307, 237 F.3d 813 (7th Cir.2001), the Court was presented with a student with dyslexia and number of substance abuse and behavioral difficulties as well as several arrests. The parents sought reimbursement for unilaterally placing their child in a boarding school for troubled youth.
The Seventh Circuit established the following test to determine whether a residential placement is reimbursable:“[t]he essential distinction is between services primarily oriented toward enabling a disabled child to obtain an education and services oriented more toward enabling the child to engage in non-educational activities.” Id at 817.
i. The services that are primarily oriented toward enabling a child to access education are ‘related services’ within the meaning of the statute” and, therefore, placement at a school that provides such is reimbursable whereas placement at school which only allows the child to engage in non-educational activities not. Id.
In applying the above test, the court held that the Dale’s parents were not entitled to reimbursement for placing their child in a private boarding school after his release from jail because the purpose of the placement was confinement due to non-educational problems, which is not a “related service” under the IDEA. Id. at 816–17.
In making this ruling, the Dale M. Court noted that the Third Circuit took a different approach in Kruelle. There, the Third Circuit ruled that whether a public school district is required to reimburse parents for a private residential placement depends “on whether full-time placement may be considered necessary for educational purposes, or whether the residential placement is a response to medical, social or emotional problems that are segregable from the learning process.” Id. at 693 (emphasis added). The Court opined that the parents there were entitled to reimbursement for the residential placement of their mentally retarded child with cerebral palsy who needed assistance with basic skills such as speaking, walking, dressing himself, eating unaided, and using the toilet. Id. at 688–89, 693–95.
Dale M. expressly limited the Kruelle reasoning to situations where “training in the basic social skills of using the toilet, dressing, feeding, and simple communication” in a residential placement are “a necessary predicate for learning.” Dale M., 237 F.3d at 817. Unlike the student in Kruelle, Dale had “no cognitive defect or disorder...that prevent[ed] him from applying his intelligence to the acquisition of an education, without special assistance.” Id. Dale’s problem was that he “lacked proper socialization.” Id.
Analysis and Implication for Districts:
i. Where a student’s problems are not primarily educational so that they can be said to interfere with the child’s education, a school district has no obligation to provide for a placement whose sole function is to provide services to address said non-educational needs. See id.
Courts can draw a distinction between those services that are necessary primarily for treating a child’s medical or behavioral problems and those services that are primarily for enabling educational instruction.
Subsequent courts have held that while payment by school districts for services at residential medical facilities is possible under Dale M., parents are not entitled to reimbursement for their placement in such facilities where the “placement ... was a response to medical, social, or emotional problems that [were] necessary quite apart from the learning process.” Doe v. Shorewood Sch. Dist., 2005 WL 2387717 at *21(E.D. Wis. 2005).
ONE ILLINOIS COURTS’ APPROACH: THE JENNA R. CASE
Jenna R.P. v. City of Chicago School District No. 229, 2013 IL App (1st) 112247 (2013)
Jenna was a high school student who was adopted at a young age; she suffered sexual abuse, had a range of behavioral issues, repeatedly ran away from home and was hospitalized for mental health reasons and suicidal ideations on multiple occasions. She was not diagnosed with reactive attachment disorder. CPS recommended a placement for 80% in general education and 20% in special education at a CPS high school. The hearing officer and Circuit court opined that such placement was not denial of FAPE because CPS indicated it could have considered private day school or other placement; therefore, reimbursement was not required.
The Appellate Court reversed, but in doing so, the court did not expressly articulate any test for determining when a district must reimburse a parent for residential placement or cite to the Dale M. standard:
Instead, the court based its opinion on the fact that the hearing officer and circuit court made errors of law by evaluating a hypothetical IEP/placement that the district could have offered. Id. at 10. Instead, the law requires a district to look at the placement that was actually offered. Id. In this case, the court found that the CPS placement which was actually offered - 80% general education and 20% of special education - was inappropriate. Id.
Additionally, the court found that the lower decisions erred by placing significant emphasis on the requirement of educating a student in the least restrictive environment. Id. at 11. Rather, the court noted that there are a number offactors to consider when determining if a parent’s choice provided an appropriate education, including whether the placement provided an element of special education services that the public school placement did not offer and that the residential school offered specially designed instruction to meet the unique needs of the child. Id.
THE ROLE OF NOTICE IN DETERMINING WHETHER REIMBURSEMENT IS APPROPRIATE
The reimbursement of educational costs for a private school placement, including private residential placement, may be reduced or denied if parents do not comply with the following requirements in the IDEA:
A parent must provide notice of his/her dissatisfaction with the IEP and intent to unilaterally place the student, as well as indicate that he/she intend to seek public reimbursement for the unilateral placement (i.e. unilateral placement “at public expense”); or at least ten business days prior to the removal of the child from his/her current program, a parent must provide written notice that he/she is rejecting the placement proposed in the IEP and is enrolling the child in a private school at public expense;
If, prior to the parent’s removal of the child from the public school, the District provided prior written notice to the parent of its intent to evaluation the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parent did not make the child available for the evaluation; or
Upon a judicial finding that the parent’s actions were unreasonable.
See 20 U.S.C. §1412(a)(10)(C)(iii)
The Supreme Court has held that “[w]hen a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private education is warranted. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009)
Many lower courts have denied parents the right to seek reimbursement from a District for a unilateral placement when the IDEA required notice is not given. See e.g., Greenland School District v. Amy N., 358 F.3d 150 (1st Cir. 2004);Berger v. Medina City Sch. Dist., 348 F.3d 513 (6th Cir. 2003; Pollowitz v. Weast, No. 00-1690, 90 Fed.Appx. 438, 2001 WL 390035 (4th Cir. April 17, 2001); Lauren V. v. Colonial Sch. Dist., No. 07-308, 2007 WL 3085854 (E.D.Pa. 2007).
Parents cannot simply state they intend to place the student elsewhere and ask for financial support. Pollowitz v. Weast, No. 00-1690, 90 Fed.Appx. 438, 2001 WL 390035 (4th Cir. April 17, 2001).
In Pollowitz, the parents unilaterally placed their child in private school and then sought reimbursement from the District for the student’s private school tuition expenses. The parents indicated they provided notice to the District in the form of a letter dated in June 1998 which stated that:
“Our clients have explored other placement options for Andrew and have procured his placement into The Lab School of Washington for the coming year. They intend to place Andrew
there and are requesting that MCPS consider supporting that placement. They have also procured additional assessments, copies of which are enclosed, in support of their request. Please refer this matter to the Central Placement Unit for consideration of the new assessments and the family’s request for consideration of Lab School as a placement for Andrew.”
The student then enrolled in The Lab School for the 1998-1999 school year. Pollowitz, 2001 WL 390035 at *2. At the conclusion of that school year, the parents requested an administrative hearing seeking tuition reimbursement. The administrative law judge dismissed the parents’ complaint based on the parents’ failure to provide notice of their rejection of the proposed IEP in accordance with the IDEA. On appeal, the district court ruled in favor of the District and upheld the administrative decision holding that the parents failed to provide timely notice to the District of their rejection of the proposed IEP and that this prejudiced the District.
The court noted that despite the parents expressing reservations about the proposed IEP, they did not specifically reject the IEP and therefore the court held they did not provide the District notice they were objecting to the proposed IEP.
The district court also found that the June 1998 letter was not notice of rejection of the proposed IEP but conveyed only that the parents believed that placement in private school would be better. The court also noted that the June 1998 letter was untimely because it was sent after Andrew was already enrolled in private school.
The purpose of the notice requirement is to give districts the opportunity to provide a FAPE before a child leaves public school and enrolls in private school. Patricia P. v. Bd. of Educ., 203 F.3d 462 (7th Cir. 2000).
Parents who unilaterally placed their child in a private school without notice to the district and without offering the district an opportunity to prepare an IEP that was appropriate to the child’s needs were not eligible for tuition reimbursement. Greenland School District v. Amy N., 358 F.3d 150 (1st Cir. 2004).
Courts have found it proper to deny reimbursement when the student’s parents agreed to the IEP proposed by the school and only informed the district of their concerns after parents arranged for the student’s enrollment in private school. Berger v. Medina City Sch. Dist., 348 F.3d 513 (6th Cir. 2003).
A court held that the equities disfavored an award of tuition reimbursement because parents did not notify the district they were seeking reimbursement for private residential placement until almost a year after the fact at the initiation of due process. The court noted that the IDEA does not permit parents to act at will and simply bill the district later. Lauren V. v. Colonial Sch. Dist., No. 07-308, 2007 WL 3085854 (E.D.Pa. 2007).
EXCEPTIONS TO THE IDEA’S REIMBURSEMENT REQUIREMENTS
A. The cost of reimbursement for unilateral placement shall not be reduced or
denied for failure to provide the required notice if:
the District prevented the parent from providing such notice;
the parent had not received notice of his/her responsibility to prove the notice described above; or
compliance with the requirements would likely result in physical harm to the child; and
B. May not, in the discretion of the court or hearing officer, be reduced or denied for failure to provide the required notice if:
The parent is illiterate or cannot write English; or
Compliance with the requirements would likely result in serious emotional harm to the child.
See 20 U.S.C. §1412(a)(10)(C)(iii) VI. PRACTICAL TIPS
Continue to comply with child find obligations at all grade levels.
When conducting case study evaluations, carefully document all evaluations and the reasons why a student is denied special education services and programs because if a District determines that a student is ineligible for special education services and the parent makes a unilateral placement, the District must be prepared to defend its finding of non-eligibility.
When a student is withdrawn from a public school and placed by a parent in a private school, be sure to gather information regarding the student’s performance and progress in the public school program (academic, social and behavioral). This evidence will help the district to show that the student was progressing in his public school program.
Critically study the evidence of progress and the documentation to determine whether there are issues or concerns with either the evidence of progress or the paperwork.
Consider whether to conduct a comprehensive reevaluation of the student's educational needs.
Consider meeting with the parents to discuss their concerns and/or whether to convene a formal IEP meeting to offer any different or additional services or supports.
Provide Parents with information on community based resources that are available to address non-educational needs.
Organize all records and materials gathered in the event of a due process hearing.
Consider whether to initiate a due process hearing to obtain a hearing decision that the program offered by the school district provided a FAPE to the student. June 2009 guidance from the Office of Special Education and Rehabilitative Services states that a District may file a due process complaint when a parent notifies the District that they intend to unilaterally place their student in a private school because they believe FAPE is at issue. This exact question arose in Yates v. Charles County, 212 F.Supp.2d 470 (D. Md. 2002) and the court found that the public agency had a right to initiate a due process complaint in order to prove that their program did provide the student with FAPE. Filing for due process invokes stay-put provisions and ensures the FAPE issue is addressedbefore parents accrue private education costs and seek reimbursement from the District.
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