December 2009

Case of the Month #1:

Forest Grove School District v. T.A. (remand decision from US Supreme Court)

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We followed this case up to the US Supreme Court, and have been waiting for the US District Court of Oregon's decision on remand. On December 8, 2009, the District Court again ruled for Forest Grove School District, finding that the equities (as clarified by the Ninth Circuit and affirmed by the US Supreme Court) do not compel tuition reimbursement in this situation. Under general principals of equity, the court found the following factors relevant: notice to the school district; the existence of other, more suitable placements; the effort expended by the parents in securing alternative placements; the general cooperative or uncooperative position of the school district; and the reasons that the parents sent the student to a residential placement.

After weighing several of these factors, the court found the decisive factor to be that the parents enrolled T.A. at Mount Bachelor Academy "not because of any disability recognized by the IDEA but because of his drug abuse and behavioral problems....T.A.'s parents decided to send T.A. to MBA after he admitted to using marijuana on a fairly regular basis, was occasionally so drugged that he could not get out of bed or speak, made over $1,000 worth of telephone calls to sex talk lines, scanned Internet pornography sites, and ran away from home."

In response to the parent's argument that these behaviors were actually linked to his ADHD, the court stated that "the District's responsibility under the IDEA is to remedy the learning related symptoms of a disability, not to treat the underlying disability or to treat other non-learning related symptoms. . . .That responsibility rests with the parents and medical professionals." As an aside, the judge noted that the parents chose "an extraordinarily expensive option" among all possible choices - the program cost $5,200 per month.

So, what does this mean for schools? The lessons of Forest Grove are still the same: have good, effective "child find" systems in your high schools; have good systems for flagging students who are failing classes, not attending school, or getting suspended repeatedly for disciplinary issues. That said, schools are in a better position now if parents are pursuing a residential (or private school) placement for primarily noneducational reasons. This is as it should be.

Recent information on Mt. Bachelor Academy.

12/15/09 article from The Oregonian on outcome and parents' intent to appeal decision.

Case of the Month #2: Ashland School District v. R.J. (9th Cir., December 7, 2009)

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R.J. had ADHD and was eligible for special education; her IEP addressed her problems with distractibility, task completion and organization and included counseling as a related service. In 9th grade, she began showing signs of depression and engaging in risky sexual behavior and some self-harming behaviors. She was angry about her parents' divorce and about an ex-boyfriend. In the fall of 10th grade, the student was getting A's and B's on assignments that she turned in and was not getting into trouble during the school day, but was sneaking out at night and making poor choices about her behavior outside of school. In mid-December, her parent placed her at Mt. Bachelor Academy. She did not do well there, and was expelled for sexual activity. Her parents then moved her to a more clinical, all girls residential program in Arizona. Meanwhile, they partially prevailed in a due process hearing, getting reimbursement for the Arizona program but not Mt. Bachelor.

On appeal, the US District Court of Oregon reversed the ALJ's decision, finding that Ashland School District had provided an appropriate program, and that residential placement was not necessary to meet the student's educational needs. "Rather, her placement stemmed from issues apart from the learning process, which manifested themselves away from the school grounds."

The Ninth Circuit agreed, finding that a residential placement is only appropriate if it is "necessary to provide special education and related services" to the student. "Whether a residential placement is necessary to provide special education and related services -- that is, whether the 'student is incapable of deriving educational benefit outside of a residential placement' -- is a question of fact, which we review for clear error." The Court agreed that the student did not need a residential placement for any educational reason - although she had difficulty turning assignments in on time, she earned good grades when she did complete her work. It was her risky behaviors outside of school that prompted her parents to initiate the residential placement.

Case of the Month#3: Ashland School District v. E.H.

(9th Circuit, December 7, 2009)

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E.H. became eligible for special education in 5th grade - she had migraines, anxiety and depression. She attended an alternative school in 8th grade. During the summer before high school, she was hospitalized for two suicide attempts and her treating physicians and therapists recommended residential treatment to address her persistent emotional and medical problems. After the alternative school declined her enrollment, she was placed full time at the district's high school. In November, the district agreed to provide home instruction on a temporary basis, and E.H. was again hospitalized in December for suicidal tendencies and threatening to injure family members.

In January, the parents unilaterally placed E.H. in Utah's Youth Care program. Seven months later, the parents wrote to the school district expressing dissatisfaction with the school district's education and requesting reimbursement for residential placement. The district declined; the administrative law judge ultimately ruled for the parents, finding that the district's IEPs did not provide a FAPE to the student, and that Youth Care was appropriate. The ALJ found that E.H.'s medical and educational problems were intertwined and the lack of notice was justification for reducing but not declining reimbursement.

On appeal, the US District Court of Oregon disagreed, concluding that the placement "was motivated primarily by [the parents'] worries about E.H.'s medical condition", the notice was insufficient, the parents had not objected to any of the previous IEPs, and they participated in the December 2005 IEP meeting (after their unilateral placement) "not to help ASD prepare to provide their child with FAPE, but merely as a prelude to seeking reimbursement."

The 9th Circuit agreed with the lower court's decision, concluding that it was not inappropriate for the lower court to consider the high cost of residential placement, especially since must of the cost is directed to medical or psychological care, not education. The 9th Circuit found that lower court did not inappropriately consider the parents' lack of notice, and agreed that the district had given the parents adequate Notice of Procedural Safeguards as required by the IDEA, which included the notice requirement. The district had no obligation to remind the parents of this notice once it knew they were considering a residential placement.

What do the two Ashland cases mean for schools? Residential placement cases are always very fact-specific and the outcomes vary widely across jurisdictions. These cases narrow the circumstances in which reimbursement for residential placement will be required. However, in both cases, the ALJs found several problems with the IEPs that swayed the initial decisions in favor of the parents. Although not discussed by the higher courts, in Oregon these factors could still be significant at the ALJ level so I will state them again. Be sure you can connect the dots between the assessment, present level statement, goal, and IEP progress reports. The ALJ's decision is very important because it affects "stay put" for the remainder of the litigation process.