Private School Reimbursement: Who s Responsible Under FAPE? Dannette Allen-Bronaugh, Rebecca E. Argabrite Grove, and Clara Hauth

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1 Running head: PRIVATE SCHOOL REIMBURSEMENT 1 Private School Reimbursement: Who s Responsible Under FAPE? Dannette Allen-Bronaugh, Rebecca E. Argabrite Grove, and Clara Hauth George Mason University EDSE 710 Legal Issues and Special Populations

2 PRIVATE SCHOOL REIMBURSEMENT 2 Private School Reimbursement: Who s Responsible Under FAPE? Overview The focus of this paper surrounds the issue of reimbursement for educational services for children who have never received special educational services from the public schools under the Individuals with Disabilities Education Act (IDEA). Two of the authors became interested in this issue after attending the Forest Grove School District v. T.A. oral arguments before the Supreme Court on April 28, 2009, and the third author was interested in the topic because of her position working for a public school in the central office. According to Alexander & Alexander (2009) there are three categories of students with disabilities referred to under the federal statute, two of which refer to students attending private schools (p.603). The first category addresses students with disabilities who attend public school; the second category addresses students with disabilities who are enrolled in private schools based on the Individualized Education Program (IEP) team decision. The third category, which was the issue argued in Forest Grove, looks at students with disabilities who are unilaterally placed in private schools by their parents. Parents in these cases question the adequacy of the IEP and whether a free and appropriate public education (FAPE) was provided. According to Alexander and Alexander (2009), students who are voluntarily enrolled in a private school are entitled to services albeit, to a lesser degree than those students who are placed in private schools after an IEP determination. The primary question becomes who is responsible for the financial expense of a private education for these students, the school district or the parents? IDEA addresses the issue of private school reimbursement under 20 U.S.C. 1412, SEC. 612 titled State Eligibility. In order to better understand this issue, it is imperative to look at the courts decisions on how to interpret the law.

3 PRIVATE SCHOOL REIMBURSEMENT 3 Legal Context Two Supreme Court cases heard prior to 1997 have had significant impact and are cited as landmark decisions in more recent cases surrounding the issue of private school reimbursement. The first case was the School Committee of Town of Burlington v. Department of Education, Massachusetts (1985) and the second Florence County School District Four v. Carter (1993). In total, the Supreme Court has heard five cases over the last twenty-five years that address tuition reimbursement for students unilaterally enrolled in private schools by their parents. In addition to the previous three cases mentioned, the Supreme Court has heard arguments in Board of New York v. Tom F. (2007) and Schaffer v. Weast (2009). In Burlington, the court held that the language in IDEA allowed federal courts to reimburse parents for expenditures of private education services if the public school district s IEP was inappropriate. This ruling was based on the court s interpretation of 20 U.S.C (i)(2)(c)(iii), the relief provision in IDEA prior to Based on the decision in this case, the Supreme Court created a two part test for lower courts to apply to determine if reimbursement is warranted. The test considers whether (1) the school district s placement pursuant to its IEP is inappropriate and (2) the private placement desired by the parents is appropriate (Alexander and Alexander, 2009). This test was applied in the following cases: Florence County School District Four v. Carter (1993), Frank G. v. Board of Education of Hyde Park (2006), M. M. v. School Board of Miami-Dade County, Florida (2006), Board of Education of the City School District of the City of New York v. Tom F. (2007), J.P. et al. v. County School Board of Hanover County (2008), Schaffer v. Weast (2009), M.S. v. Fairfax County School Board et al. (2009), and Forest Grove v.

4 PRIVATE SCHOOL REIMBURSEMENT 4 T.A. (2009) to assist in the determination of whether parents should receive tuition reimbursement for private school. IDEA 2004, 20 U.S.C (a)(10)(c)(ii) states: 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 without the consent of or referral by the public agency, a court or 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 available to the child in a timely manner prior to that enrollment. In addition, Congress placed limitations on reimbursement, stating that reimbursement may be reduced or denied if parents fail to do the following: inform the IEP team that they are rejecting the proposed placement, state their intent to enroll the child in a private school, provide written notice 10 days prior to the removal of the student, and/or fail to make the child available for an evaluation. However, IDEA 20 U.S.C (a)(10)(c)(ii) does not address nor place a categorical bar on the reimbursement of private school tuition for students who have not previously been identified as a student with a disability prior to parents unilateral placement (Baron, 2009). Because this topic is relatively new to the courts, it is imperative for those interested in this issue to examine previous cases to see how the law has been interpreted and applied regarding the various types of reimbursement for private school attendance. In Florence County, the student Shannon was unilaterally placed in a private school when parents felt that the services provided by the public school were inappropriate under the IDEA. However, the private school selected by the family was

5 PRIVATE SCHOOL REIMBURSEMENT 5 not on the state approved private school list. The court ruled in the parents favor, as the private school though not state approved, was able to provide Shannon with an excellent education. In addition the court ruled that the public school s proposed IEP was inadequate and did not satisfy the IDEA. The Second Circuit Court has heard at least three recent cases regarding private school reimbursement. In Greenland School District v. Amy N. (2004), Katie was not identified as needing special education support while enrolled in the public school. In fifth grade Katie s parents placed her in a private school where she was failing, and she was eventually asked to leave the school prior to the end of the year. Her parents came to the public school and asked for an evaluation by a neuropsychologist. The evaluation revealed that, in addition to a previous diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), Katie also had an anxiety disorder. The eligibility committee determined that Katie s disabilities did not adversely affect her academics, and therefore an IEP was not warranted. The parents were not happy with this decision and sought an outside evaluation, which found that Katie had a co-morbid diagnosis of Asperger s Syndrome. The team then created an IEP due to concerns regarding the future impact of the diagnosis on her education. The mother continued to disagree with the goals and placement decisions proposed by the team, as parents wanted to keep Katie at the private school. The Second Circuit Court held that Katie was not identified as a student with a disability in a timely manner. However the court ruled that proper procedures were not followed in the filing of this case, and they vacated the hearing officer s (HO) decision to grant tuition reimbursement.

6 PRIVATE SCHOOL REIMBURSEMENT 6 In Frank G., the student was enrolled in private elementary school and later began to have increasingly more difficulties. The parents contacted the local education agency (LEA) and asked for Frank to be evaluated. Based on testing results, in addition to outside evaluations that parents had previously obtained, an IEP was developed. However, because the proposed IEP goals were counter to the recommendations made by the evaluators, parents filed a due process complaint and asked that services be provided at the private school. The Second Circuit reversed the district court s ruling for reimbursement of tuition and attorney s fees since the decision was based on the introduction of new evidence, which the circuit court ruled was not admissible. In Tom F. the student had attended a private school since kindergarten. At the annual IEP review for the school year, the team recommended placement in a public school setting within the district. The parents rejected the IEP, maintained Tom s enrollment in the private school, and sought reimbursement for tuition. A due process hearing was held where parents prevailed. The school board appealed to a state review officer (SRO) who affirmed the HO and Second Circuit s decision to provide tuition reimbursement to the parents. The school board appealed the case to the Supreme Court, which was divided on the issue (4-4 since Justice Kennedy abstained) thus affirming the Second Circuit s decision. The Fourth Circuit heard arguments in J. P., Schaffer, and M.S. in recent years. J.P., is a student with autism who had attended Hanover County schools, however his parents chose to place him in a private school in order to receive ABA services. After attending the private school for a year, parents decided they wanted to re-enroll him in the public school setting. An IEP was developed and signed by the parents. J.P. s

7 PRIVATE SCHOOL REIMBURSEMENT 7 parents were quickly concerned with the lack of progress that was made over the school year and believed he needed to be re-enrolled in a private school however the staff disagreed and proposed a new IEP. The parents rejected the IEP and requested private placement at the school system s expense. The HO ruled that the proposed IEP for both years was appropriate. Both sides filed for appeal and the case was eventually heard by the Fourth Circuit, which remanded the case back to the district court, with eventual reimbursement to the family for the private school expenses. In M.S. the student was diagnosed with cognitive and communication impairments, intellectual disability, and mild to moderate autism. An IEP was proposed, however the parents rejected it and unilaterally enrolled their child in a private program for which they requested reimbursement. Fairfax County Public Schools (FCPS) rejected the parents request for reimbursement because they believed the private school to be an inappropriate placement. The parents requested a due process hearing for determining reimbursement and future educational placement. The HO assigned to the case determined that the IEP was not sufficient, however he/she did not provide the parents reimbursement for the private school since it was determined that the private school would not provide educational benefit. FCPS was ordered to provide additional services as well as compensatory education. The parents appealed the decision to the Fourth Circuit, which concluded that the IEP was valid and remanded the case back to the district court to determine the appropriateness of the private placement on a year to year basis and to determine if partial reimbursement should be awarded. In Schaffer v. Weast, Brian, the student, was diagnosed with ADHD and Auditory Processing Disorder while enrolled in private school. At the end of 7 th grade the private

8 PRIVATE SCHOOL REIMBURSEMENT 8 school told the Schaffers that they would not be able to accommodate Brian s disability. The Schaffers contacted Montgomery County Public Schools (MCPS) and requested that Brian be placed in a special-education program for 8 th grade. The Schaffers rejected the proposed IEP due to the placement that was offered, and again rejected when a different placement was offered. Instead they chose to place Brian in a private school and requested a due process hearing. The administrative law judge (ALJ) assigned the burden of proof to the Schaffers and determined that MCPS had provided FAPE and that the IEP had been written to provide educational benefit. The district court reversed the decision stating that the burden of proof should have been placed on MCPS, and then the ALJ reversed his decision. The Supreme Court ultimately ruled that the Schaffers had the burden of proof, since they were the party seeking relief. In addition it was also ruled that new evidence, which the parents stated demonstrated admission by the LEA that the previous IEP was inadequate, could not be introduced. The parents were not granted tuition reimbursement. The Ninth Circuit heard Forest Grove School District v. T.A. prior to it being heard before the Supreme Court. In this case, T.A. attended public school where teachers noticed that he had trouble paying attention and completing assignments. Once he entered high school his difficulties increased and his mother contacted the school counselor to discuss the problems. At the end of his freshman year, T.A. was evaluated and it was determined that he did not need special education services. His problems in school worsened and during his junior year, an outside evaluator diagnosed him with ADHD as well as disabilities related to learning and memory. The outside evaluator stated that T.A. would do better in a structured, residential learning environment. T.A. s parents

9 PRIVATE SCHOOL REIMBURSEMENT 9 placed him in a private residential school, which focused on educating children with learning disabilities. The parents brought a due process hearing against the school and the HO determined that T.A. s ADHD did adversely affect his educational performance and that the school district had failed to provide FAPE under IDEA. The HO ruled that the parents should be reimbursed for the private school tuition. The Supreme Court affirmed the circuit court decision that the school district was responsible for tuition despite the fact that T.A. had never been identified as being a student with special needs prior to being placed in a private school. When the case was sent back to the Ninth Circuit to determine reimbursement expenses, they decided to reimburse but not for the full amount. The Eleventh Circuit heard the M.M. case in which, a student, C.M. was born with bilateral sensorial hearing loss and was eventually fit with a cochlear implant. The parents were not interested in either of the proposed programs the school offered. The parents wanted C.M. to continue receiving services at the private preschool and receive a specific type of training, which the school district did not offer. The parents signed the IEP but wrote on it that they disagreed and then filed a due process hearing request because of the school board s refusal to provide the specific training. Because C.M. had not been enrolled in public school, they had to determine if the parents were entitled to any form of reimbursement. The courts determined that FAPE had been provided, and therefore parents were not entitled to tuition reimbursement. Legal and Ethical Critique Many conflicts arise between parents and school districts with regard to whether FAPE has been provided. Providing FAPE to students is the cornerstone of IDEA and is a public

10 PRIVATE SCHOOL REIMBURSEMENT 10 school s primary obligation (Yell, 2006, p. 328). Under IDEA, students are entitled to receive services that are designed to meet their unique needs. The issue of FAPE goes back to Hendrick Hudson School District v. Rowley (1982), where a two part test for determining if FAPE has been provided was first developed. Under the two part test, schools must comply with the procedural aspects of IDEA and the IEP developed must be written so that a student receives educational benefit (Yell, p. 228). Under IDEA, the language is clear when it comes to providing reimbursement for students who have previously been identified as having special needs and have an IEP. Recently parents have chosen to unilaterally place their children, who have yet to be identified as having a disability by the public school, in private schools and subsequently file due process complaints asking for reimbursement. In this situation, the law is not as clearly written and is one of the reasons why the Supreme Court heard Forest Grove (2009) as well as Tom F. (2007). It is apparent that the courts are split over the issue of reimbursement. It is important to remember that the issue of reimbursement is not the same as a monetary award. According to Yell (2006), tuition reimbursement is a school district responsibility to parents for the education that they should have provided to the student in the first place. When the courts rule that the school system must provide tuition reimbursement, they are saying that they recognize that the parents had to seek out an appropriate education for their child, when FAPE has been denied. It was noted in the Schaffer case that the HO and courts went back and forth on determining who had the burden of proof. According to Yell (2006), assigning the burden of proof has been an area of conflict in the courts. The First, Ninth, and D.C. Circuit courts have held that the burden of proof lies with the challenging party. In the Third Circuit the court ruled

11 PRIVATE SCHOOL REIMBURSEMENT 11 in Oberti v. Board of Education (1993) that the burden of proof should be placed on the schools (Yell, p. 325). Impact on Practice According to Baron (2009), the lower courts remain divided on the issue of reimbursement for public school tuition when students are unilaterally enrolled. The Second, Ninth, and Eleventh Circuits currently recognize the availability of reimbursement, while the First Circuit has refused to do so (Baron). Because the courts are divided on this issue, and the language of the law is not clear, it is important for schools to make sure that they are following district regulations for determining special education eligibility and for providing special education services. It is also imperative that special education teachers and administrators know the law at both the state and federal level in order to ensure compliance. Schools need to demonstrate that the IEP offered to families is based on student needs and that FAPE is being provided. As Justice Rehnquist wrote in Burlington, time is the essence in ensuring that children with disabilities receive the services they need. It can take years for the courts to rule on issues of reimbursement and by the time they do a child has lost years in their development. Parents only have two choices when presented with an IEP to which they disagree; agree to implement the proposed placement to the possible detriment of the child or paying for private tuition out-of-pocket in hopes that they will be reimbursed by the public school at a later date. The second choice is typically not available to parents with limited financial resources. Suggestions for Future Implementation Strategies With any reimbursement request under IDEA, the courts have the discretion and responsibility to determine whether reimbursement is justified. In their deliberation, they may examine the potential real world implications of the decision to reimburse, though this is not

12 PRIVATE SCHOOL REIMBURSEMENT 12 required under IDEA. Concurrently, public school systems should examine implications of procedural and substantive compliance when developing IEPs intended to provide FAPE to students. Consideration of the following tips may assist public schools in providing the burden of proof should they be faced with parental requests for tuition reimbursement: 1. Promptly identify, refer, and evaluate, any students suspected of having a disability. 2. If found eligible propose, develop, and implement an IEP as appropriate. 3. Develop and propose an annual IEP each year even when a student is placed in a private school setting, whether placed unilaterally by the parent or by recommendation of the IEP team. 4. Develop an appropriate IEP that is reasonably calculated to confer educational benefit. Goals and objectives should be reasonably attainable within a year. 5. Maintain a continuum of placement options and ensure that placement decisions are made by a group of individuals including the parents to provide FAPE to the student in the least restrictive environment. 6. Identify the particular school, public or private, when a parent challenges a chosen placement recommendation, which may include a list or range of possibilities (A.K. v. Alexandria City School Board, 2007). 7. Provide comprehensive educational programs and explain how methodologies/instructional practices used are appropriate for the student. 8. Collect data frequently, analyze it, interpret it, and use it to make instructional decisions. Ensure that progress reporting is based on student performance data.

13 PRIVATE SCHOOL REIMBURSEMENT Provide ongoing staff training and support throughout the year to ensure competency in implementing the IEP. 10. When parents provide notice of removal of a student to a private school or indicate a possible request for reimbursement, an immediate and comprehensive evaluation should be conducted. 11. Determine whether services and supports offered by a private placement can be provided within the less restrictive environment of the public school setting. It is the responsibility of the public school system to ensure that FAPE is provided to all special education students in both public and private settings regardless of whether it is the unilateral decision of parents or the IEP team s recommendation for private placement. With a thorough understanding of both special education law and regulation, IEP teams may express confidence in the continuum of educational programs they have to offer to students with special needs.

14 PRIVATE SCHOOL REIMBURSEMENT 14 References A.K. v. Alexandria City School Board (2007) 484 F.3d 672 (4 th Cir.). Alexander, K., & Alexander, M.D. (2009). American public school law (7 th ed.) St. Paul, MN: West Publishing. Baron, C. R. (2009). Lessons learned from forest grove school district v. T.A.: How the supreme court can refine the approach to private school tuition reimbursement under the IDEA. Northwestern University Law Review Colloquy 103, Board of Education v. Tom F. (2007) 48 IDELR 239, 128 S. Ct.1 (2007) (per curium). Florence County School District Four v. Carter (1993) 510 U.S. 7 (114 S. Ct. 361). Forest Grove School District v. T.A., (2009) 174 L. Ed. 2d 168 (129 S. Ct. 2484). Frank G v. Board of Education (2006) 459 F.3d 356 (2 nd Cir.). Greenland School District v. Amy N. (2004) 358 F.3d 150. (2 nd Cir). Individuals with Disabilities Education Improvement Act, 20 U.S.C (2004). J.P. et al. v. County School Board of Hanover County (2008) 516 F.3d 254 (4 th Cir. 2008). M.M. v. School Board of Miami-Dade Florida (2006) 437 F.3d 1085 (11 th Cir.). M.S. v. Fairfax County School Board et al. (2009) 553 F.3d 315 (4 th Cir.). School Committee of the Town of Burlington, Massachusetts, et al. v. Department of Education of Massachusetts et al., (1985) 471 U.S. 359; (105 S. Ct. 1996). Schaffer v. Weast (2009) 554. F. 3d 470 (4 th Cir.). Yell, M. (2006). The law and special education (2 nd ed). Upper Saddle River, NJ: Pearson.

15 PRIVATE SCHOOL REIMBURSEMENT 15 Legal Brief Florence County School District Four v. Carter 510 U.S. 7 (114 S. Ct. 361, 1993) Facts: actual circumstance or events Shannon Carter was classified as LD in 1985 while in 9 th grade Parents stated that the IEP developed by the school was inadequate and requested a due process hearing at both local and state level Shannon was enrolled in a private school specializing in educating children with disabilities HO and SRO stated that the IEP was adequate Issue: the dispute/question Whether a court may order reimbursement for a parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and puts the child in a private school that provides an education that is appropriate under IDEA Holding: the decision Affirm the judgment of Court of Appeals and award reimbursement to parents for tuition and other costs incurred at private school Analysis: explains how holding was reached Courts held that LEA proposed an inadequate IEP and failed to satisfy the requirements of IDEA Although the private school did not comply with all the procedures outlined in IDEA it complied with a number of them and it provided Shannon with an excellent education Doctrine: legal principle Interpretation of FAPE under the original language of IDEA Specifically were parents barred from reimbursement because the private school in which Shannon enrolled did not meet the definition of FAPE Significance: implications of the decision; importance Landmark case along with Burlington where parents were first awarded reimbursement for private school tuition when they disagreed with an IEP and the services offered by the LEA

16 PRIVATE SCHOOL REIMBURSEMENT 16 Legal Brief Greenland School District v. Amy N 358 F.3d 150 (2 nd Cir. 2004) Facts: actual circumstance or events Kati attended grades 1-4 in Greenland schools in regular education classrooms with no special education support Teachers made accommodations for Katie in class to help her succeed No one at school or parents referred Katie for an evaluation during this time Between 1 st and 2 nd grade Katie was diagnosed with ADHD and put on medication In 4 th grade Katie would not have been able to complete her work without the help of parents and a tutor Parents enrolled Katie in a private school for 5 th grade school asked parents not to help her with homework Katie had failing grades in math in the fall, parents went back to helping her with homework and her grades improved however Katie was asked to leave the school in the spring Parents enrolled Katie in Learning Skills Academy to finish 5 th grade Parents requested neuropsychologist exam by a doctor who was contracted by Greenland schools Team determined that Katie had ADHD and anxiety disorder which caused some limitation, they did not adversely affect her academics LD was ruled out because there was no discrepancy Mother did not sign off on team summary Team offered to design a 504 plan Mother notified district that they were going to pursue outside evaluation Evaluation confirmed ADHD but also found that Katie had Asperger Syndrome IEP was developed even though Katie was not showing adverse educational performance them was concerned about future impact of Asperger Mother agreed with goals but not with placement wanted to keep Katie at Learning Skills Academy Parents filed a request of due process hearing to address reimbursement for Katie s tuition Issue: the dispute/question Whether parents were entitled to tuition reimbursement under IDEA Did the district follow Child Find obligations as outlined in IDEA Holding: the decision Vacated the complaint that the IEP was inadequate as well as the request for reimbursement tuition and the decision of the HO to reimburse parents Decision is affirmed as to the lack of timeliness of the school district to identify Katie as a child with a disability under Child Find obligations

17 PRIVATE SCHOOL REIMBURSEMENT 17 Analysis: explains how holding was reached Court determine that Katie s educational performance would have been adversely affected by ADHD except for the specialized instruction she was receiving from teachers and parents, therefore she met the requirements to be identified as a child with a disability in 5 th grade when the initial team meeting was held and she was found ineligible Doctrine: legal principle A child who is enrolled in a private school by parents, when the child has not received special education and when FAPE is not an issue in the public school, is still subject to the child find requirements for identifying children with disabilities NHDOE regulations require a local school district to contact representatives of private school children within its jurisdiction to advise them of the district s responsibility to identify and evaluate all children who are suspected of or known to be children with a disability who are enrolled in such schools Significance: implications of the decision; importance Making sure law is clear HO erred because he used standards that apply to children in public schools because according to 34 C.F. R (a) which states that no private school child with a disability has an individual right to receive some or all of the special education and related Districts need to make sure they are complying with Child Find regulations as outlined in IDEA

18 PRIVATE SCHOOL REIMBURSEMENT 18 Legal Brief Frank G. v Board of Education of Hyde Park 459 F. 3d 356 (2 nd Cir. 2006) Facts: actual circumstance or events Adopted child born to a crack-addicted mother Diagnosed with ADHD since 3 Enrolled in private schools through 4 th grade Performance in school worsened as academics became more challenging and class sizes were bigger April 2000 parents contacted the school districts Committee on Special Education classified as LD School district evaluations and outside evaluations had numerous recommendations for student (small class size, social skills training, counseling, help in math) IEP was developed for school year parents requested impartial hearing to reconsider because recommendations were counter to recommendations made by evaluators asked for services to be provided at private school Parents enrolled child in Upton Lake Christian School Issue: the dispute/question Do the parents qualify for reimbursement of the private school tuition as a result of the failure of the LEA to provide him with a FAPE Holding: the decision District courts decision was affirmed and parents were awarded reimbursement Analysis: explains how holding was reached HO concluded that Upton Lake was not an appropriate placement because Anthony was not making progress and that the LEA was not responsible for tuition reimbursement. Ordered LEA to provide consultant teacher services, counseling, OT and a one-toone aide at Upton Lake for Anthony Both parties filed administrative appeal to State Review Officer (SRO) SRO affirmed HO s decision did state that some of Anthony s needs were being addressed at Upton Lake July 2003 parents filed a compliant with the Southern District of New York Additional evidence was provided based on end of year grades and testing. Awarded tuition reimbursement to parents as well as attorney fees School district appealed Based on the fact that private school placement was not appropriate and therefore they should not have to provide reimbursement That the judge should not have heard additional evidence Doctrine: legal principle

19 PRIVATE SCHOOL REIMBURSEMENT 19 If a state fails in its obligation to provide a FAPE to a handicapped child, the parents may enroll the child in a private school and seek retroactive reimbursement for the costs of the private school from the state Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposed IEP is inappropriate Significance: implications of the decision; importance Additional expenses for LEA s if parents bring cases against school Important for LEAs to make sure they are complying with regulations outlined to provide a FAPE to students Clearer regulations regarding reimbursement

20 PRIVATE SCHOOL REIMBURSEMENT 20 Legal Brief M.M. v School Board of Miami-Dade County Florida 237 F.3d 356 (11 th Cir. 2006) Facts: actual circumstance or events CM born with bilateral sensorial hearing loss, hearing aides were attempted then cochlear implant received at 18 months Audio-Verbal therapy, oral motor therapy and other special education services were provided through EI until age 3 At 3, parents met with School Board and it was agreed that CM was eligible for special education services Parents were told that the district did not provide AVT but used VT which was another approach There were a two options for classes CM could be enrolled in Parents were not interested in any of the programs offered and wanted CM to stay at private preschool and receive AVT services at Boards expense Board refused and prepared an IEP for CM where she would receive 60 minutes of small teacher instruction in expressive and receptive language skills from an SLP Parents signed IEP but wrote that they disagreed with placement and that CM was in need of AVT Parents filed due process hearing request at School Board s refusal to provide AVT Successor IEP was developed because due process hearing had not been completed and parents disagreed with this IEP as well and kept CM in private school and private AVT Issue: the dispute/question Did School Board violate IDEA by refusing to provide CM with a FAPE in 2002 and 2003 Did the School Board violate the ADA by refusing to accommodate CM Are parents entitled to reimbursement of private tuition, AVT services, transportation to AVT services, mapping for cochlear implant, and batteries for implant Holding: the decision Affirmed courts dismissal of case (CM was provided a FAPE and parents are not entitled to reimbursement) Analysis: explains how holding was reached Determined that School Board offered FAPE and parents are not entitled to reimbursement under IDEA for private tuition or related services Doctrine: legal principle

21 PRIVATE SCHOOL REIMBURSEMENT 21 Court first had to determine if CM was entitled to any form of reimbursement given that she was currently enrolled in private school and never enrolled in public school Court determined that parents would be eligible for reimbursement if CM had been denied FAPE Court had to determine what types of expenses could be reimbursed under IDEA only tuition or also related services Significance: implications of the decision; importance Important to make sure FAPE is being offered to parents FAPE does not mean the child gets the services parents want but that the child receives services, which have an educational benefit.

22 PRIVATE SCHOOL REIMBURSEMENT 22 Legal Brief Bd. Of Educ. Of the City Sch. Dist. Of the City of N.Y. v. Tom F. 48 IDELR 239, 128 S. Ct.1 (2007) (per curium) Facts: actual circumstance or events Student had attended a private school since kindergarten At annual review for the school year, the IEP ream recommended placement in the public school setting. Parents rejected and continued with private placement then requested due process to seek reimbursement for tuition. Parents prevailed in due process and school board appealed to a state review officer who affirmed the hearing officer s decision. School board appealed to federal district court which reversed lower rulings. Parents appealed to the Second Circuit. Second Circuit vacated and concluded that parents could obtain tuition reimbursement. School board appealed and the Supreme Court granted certiorari. Supreme Court was equally divided (4-4) and affirmed the decision of the Second Circuit. Issue: the dispute/question FAPE Unilateral placement and tuition reimbursement Must a student be enrolled in public school prior to parents requesting and receiving reimbursement for private school? Holding: the decision The decision effectively did not resolve whether a student must be enrolled in public school before parents may obtain reimbursement for private schooling though it did affirm the 2 nd Circuit s decision Analysis: explains how holding was reached District court held that a child must have previously received special education from a public school prior to granting parents the authority to be reimbursed for tuition expenses arising from unilateral placement in private school. 2 nd Circuit cited Board of Education of the Hyde Park Central School District v. Frank G. ex rel. Anthony G., 46 IDELR 33, 459 F.3d 356 (2d Cir. 2006) in that so long as parents give reasonable notice that they reject the proposed IEP and that they plan to enroll their child in private school at public expense, they are entitled to reimbursement. Doctrine: legal principle IDEA - Reimbursement, 20 U.S.C.S. 1412(a)(10)(C)(iii)(I)(aa)-(bb) Significance: implications of the decision; importance Not controlling (2 nd Circuit) Supreme Court s decision was per curium (judgment affirmed by an equally divided Court). Therefore, the issue remains for resolution by future statutory clarification or court action.

23 PRIVATE SCHOOL REIMBURSEMENT 23 There continues to be split decisions across Circuits, therefore continued litigation on this issue can be expected. Develop and propose an appropriate IEP and continue to do so on an annual basis even if the child is not enrolled in the public school setting Consider offering an Individualized Services Plan (ISP) to private school students

24 PRIVATE SCHOOL REIMBURSEMENT 24 Legal Brief J.P. et al. v. County School Board of Hanover County 516 F.3d 254 (4 th Cir. 2008), CA No. 3:06cv28 (E.D. Va. Dec. 16, 2008) Facts: actual circumstance or events 13 year old with autism attended public school in Hanover County from January 2001-May 2003 Parents unilaterally placed him at Spiritos School during the school year so that he may receive ABA services. Parents sought re-entry to public school for the school year. Hanover developed an IEP that included some ABA services, 1:1 aide, self-contained placement, and use of some discrete trial when deemed appropriate by staff. Parents agreed to IEP. Parents were concerned about progress made, and by the end of the school year concluded that he had made no progress and believed that he again needed a private program. Hanover disagreed and proposed an IEP for the school year that was essentially the same as the IEP. Parents rejected the proposed IEP and requested private placement at public expense. Parents enrolled student at the Dominion School, which had just opened that year, based on its use of ABA and filed for due process. Hearing officer ruled in favor of Hanover County upholding appropriateness of and proposed IEP. Parents appealed to federal district court. District court reversed the hearing officer s decision in favor of the parents and ordered Hanover County to reimburse the family including tuition and attorney s fees and costs. Hanover appealed to the U.S. Court of Appeals for the Fourth Circuit. Fourth Circuit determined that the district court failed to give required deference to the hearing officer s decision and thus vacated the judgment and remanded the case with instructions to reconsider the appropriateness of the proposed IEP. They also vacated the district court s order awarding attorney s fees and costs. On remand, the district court affirmed their previous decision that the hearing officer s decision was not entitled to any deference, Hanover s IEPs were not appropriate, Dominion School was an appropriate placement, and parents were entitled to reimbursement. Issue: the dispute/question Was the student denied FAPE due to his degree of progress surrounding choice of instructional methodologies used? Holding: the decision FAPE was denied. U.S. District judge ordered Hanover County to reimburse family for the expenses associated with educating JP at the Dominion School during the school year totaling $33, in addition to attorney s fees and costs.

25 PRIVATE SCHOOL REIMBURSEMENT 25 Analysis: explains how holding was reached Analysis revealed that student made minimal progress at best (regression in some significant areas and stagnant in others) while enrolled in Hanover County. School progress logs skipped many days of speech therapy, contained no explanation for gaps in recording, contained no standardized, test-based measures of progress, and progress reports contained only conclusory benchmark scores. Lack of discrete trial data inhibited progress. The only graphing of data had been completed by the student s father and indicated that data was collected irregularly with failure to indicate the specific details of tasks given. 1:1 aide was undertrained having only received six days of training which expert witnesses deemed insufficient. Testimony offered by parents experts was more credible and persuasive than that of Hanover s experts thus deeming that Hanover failed to correctly implement the discrete trial method. While enrolled at Dominion, the student acquired and retained the ability to do 73 discrete trials as well as advancing from a pre-first grade reading level to a fourth grade level. Doctrine: legal principle Free and appropriate public education (FAPE) under Individuals with Disabilities Education Act (IDEA), 20 U.S.C et seq. (2000) Reimbursement under IDEA, 20 U.S.C. 1412(a)(10)(C)(ii), 1415(i)(2)(B)(iii), and 1415(i)(3)(B). Significance: implications of the decision; importance Controlling (4 th Circuit) Collect data frequently to demonstrate progress and analyze it to drive instructional decisions Assess staff skill competency with specific methodologies and provide necessary ongoing training and support Modify the annual IEP from year to year and meet intermittently if needed to discuss progress and consider changes to goals/objectives and services. Presentation of the same proposed document from year to year can be an initial indicator of lack of progress.

26 PRIVATE SCHOOL REIMBURSEMENT 26 Legal Brief M.S. v. Fairfax County School Board et al. 553 F.3d 315 (4 th Cir. 2009) Facts: actual circumstance or events Student with cognitive and communication impairments including intellectual disability, oral motor apraxia, and mild to moderate autism Fairfax County Public Schools (FCPS) proposed an IEP for the school year which the parents rejected Parents unilaterally placed student in a private Lindamood-Bell program after being denied admission to three private schools and requested reimbursement for four years of private services. FCPS denied the request on the position that the private program was not appropriate. Parents requested due process for reimbursement and determine future educational placement. Hearing officer found that FCPS IEP did not provide sufficient 1:1 instruction but denied request for reimbursement finding that private program was not reasonably calculated to give educational benefits. FCPS was ordered to provide a program that included private sign-language instruction, private speech therapy, and compensatory education. Parents appealed to U.S. Court of Appeals for the Fourth Circuit for reimbursement and conclusion that IEP was valid. The case was remanded back to U.S. District Court for consideration of the appropriateness of the Lindamood-Bell placement on a year-to-year basis and to determine whether any partial reimbursement should be awarded. Issue: the dispute/question Was the student denied FAPE due to degree of progress and adequate IEP? Are parents entitled to tuition reimbursement? Holding: the decision Court affirmed the district court's finding that the IEP was adequate under IDEA Court vacated the district court's denial of reimbursement and remanded with instructions for the district court to consider the private school placement on a year-by-year basis and determine whether any partial reimbursement was appropriate Analysis: explains how holding was reached District court determined that FCPS IEPs were inappropriate because student had made little progress and despite acknowledging that 1:1 services were required in order to learn, the IEP left the decision up to school staff whether to provide the 1:1 services District court denied reimbursement for the Lindamood-Bell program because the student had also not made progress in that program and the student required small group instruction, which was not available in the private program. The program

27 PRIVATE SCHOOL REIMBURSEMENT 27 also did not provide a full program of studies and addressed limited needs of the student. Fourth circuit determined that district court erred by not conducting a year-byyear analysis of whether the private program was an appropriate placement. Fourth circuit also noted that it must be considered whether partial reimbursement is appropriate for a given year. Fourth circuit agreed that IEP was adequate. Doctrine: legal principle IDEA -IEP, 20 U.S.C.S. 1414(d)(1)(A), IDEA Annual IEP, 20 U.S.C.S. 1414(d)(4)(A)(i). IDEA - Funding, 20 U.S.C.S. 1415(i)(2)(C)(iii) Significance: implications of the decision; importance Controlling (4 th Circuit) Actual progress and restrictive nature of private school programs are important factors to consider but alone are not dispositive Year-to-year analysis of the need for private placement should be considered Evaluating the IEP and parental placement each year acknowledges that what is reasonably calculated to provide benefit may change over time

28 PRIVATE SCHOOL REIMBURSEMENT 28 Legal Brief Schaffer v Weast 554 F. 3d 470 (4 th Cir. 2009) Facts: actual circumstance or events Brian was diagnosed with ADHD and Auditory Processing Disorder Enrolled in private school through 7 th grade and then school told parents that they would be unable to accommodate Brian s disabilities Parents contacted Montgomery County Public Schools (MCPS) to request that Brian be placed in a special-education program for 8 th grade Committee determined Brain also had a learning disability an IEP was proposed Schaffers rejected proposed IEP because they said the class sizes were too large MCPS offered a different placement parents remained dissatisfied Parents chose to enroll Brian in a private school Parents had applied to private school shortly after requesting that MCPS evaluate Brian When Schaffers received the proposed IEP, Brian was accepted at the private school and they had paid for the enrolment fee Parents requested a due process hearing to challenge IEP and seek reimbursement for Brian s tuition expenses Issue: the dispute/question Whether FAPE was provided to Schaffer and whether parents are entitled to reimbursement for private school tuition Parents sued, introducing new evidence (10 th grade IEP) which parents had accepted and which they argued was an admission by the district that the 8 th grade IEP was inadequate Holding: the decision Schaffers request for reimbursement was denied refused to hear new evidence presented at 4 th Circuit hearing 4 th Circuit affirmed lower courts decisions Analysis: explains how holding was reached Administrative Law Judge heard the case and assigned the burden of proof to the Schaffers ALJ held that MCPS provided FAPE because the IEP written to provide educational benefit and to meet Brian s educational needs Schaffers filed civil action to challenge decision District court reversed and remanded, holding that the ALJ should have assigned the burden of proof to MCPS ALJ reconsidered the case denied a request by the Schaffers to introduce additional evidence ALJ decided that reversing the burden of proof also reversed the outcome Supreme Court ultimately ruled that the Schaffers had the burden of proof in an administrative hearing since they were the party seeking relief

29 PRIVATE SCHOOL REIMBURSEMENT 29 Schaffers moved to introduce additional evidence under 20 U.S.C. 1415(i)(2)(C)(ii) Doctrine: legal principle If parents are entitled to reimbursement for private school tuition under IDEA 20 U.S.C Whether parents can introduce additional evidence Significance: implications of the decision; importance New evidence cannot be introduced if the evidence promotes a hindsight-based review

30 PRIVATE SCHOOL REIMBURSEMENT 30 Legal Brief Forest Grove School District v. T.A. 174 L. Ed. 2d 168 (129 S. Ct. 2483, 2009) Facts: actual circumstance or events T.A. attended public school in Forest Grove from Kindergarten spring of his junior year From K-8, teachers observed T.A. as having trouble paying attention and completing assignments when he entered high school (HS) his difficulties increased December (2000) of freshman year mother contacted school counselor to discuss T.A. s problems with schoolwork End of freshman year T.A. was evaluated by school psychologist (cognitive ability tests) determined he did not need additional testing for any learning disabilities or other health impairments Report discussed with mother and other school officials et al. agreed T.A. did not need special education services Problems worsened Junior year (2003) parents discussed with school district the possibility of T.A. completing HS through a partnership program with the local community college Parents also sought private professional advice T.A. was diagnosed with ADHD as well as disabilities related to learning and memory Professional advised that T.A. would do best in a structured, residential learning environment Parents removed him during the spring of his junior year and placed him in a private residential school that focuses on educating children with special needs July 2003 multidisciplinary team met to discuss whether T.A. classified under IDEA as a child with a disability concluded that ADHD did not impact him educationally therefore he did not qualify January 2004 a hearing officer assigned to the case determined that T.A. s ADHD did adversely affect his educational performance and that the school district had failed to meet its obligations under IDEA and did not offer a FAPE, parents should be reimbursed for private school tuition. Issue: the dispute/question Whether parents are entitled to reimbursement for private school tuition Holding: the decision Supreme Court Affirmed 9 th Circuit decision that the school district was responsible for the reimbursement of private school expenses. Case was sent back to the lower court to determine reimbursement amount Decided to reimburse but not for the full amount Analysis: explains how holding was reached