May 2008 - Residential placement

Case of the Month: Forest Grove School District v. T.A.

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May parents seek tuition reimbursement from a school district for a private placement if the student never received special education from that school district? The Ninth Circuit just ruled yes (2-1), adopting the reasoning from the Second Circuit in Frank G. v. Board of Education of Hyde Park (2006), and rejecting the reasoning in the First Circuit in Greenland School District v. Amy N. (2004).

In Forest Grove, the student attended public school through the spring semester of his junior year in high school, when his parents unilaterally placed him in a wilderness program and then a private residential school. He had been evaluated for special education in his freshman year and found not eligible (parents agreed); the parents did not request another evaluation before removing him from public school. However, he was only evaluated for specific learning disability and not for ADHD (OHI) although meeting notes indicated that staff suspected ADHD at the time, and staff did not follow up on a 504 plan although it was mentioned in the psychologist's report.

During his sophomore year, he began using marijuana and ran away from home. A private psychologist diagnosed ADHD, depression, math disorder and cannabis abuse, and recommended residential placement. At hearing, the administrative law judge found that the student met the criteria for special education, the district did not offer FAPE, and was responsible for tuition reimbursement for the private residential school (but not the wilderness program).

On appeal, the federal district court reversed and sent the case back, holding that, based on a plain reading of the statute, the tuition reimbursement provision in IDEA was limited to students who had previously received special education from the school district, adopting Greenland. To cover its bases, the court also held that the "equities" did not require reimbursement.

The Ninth Circuit disagreed, saying that Congress did not intend to limit tuition reimbursement only to students who had previously received special education from the school district (although that's what the statute says), and that the judge below did not properly determine the "equities". The court rejected the notion that tuition reimbursement would only be available in "extreme" cases. Rather, a court "should consider all relevant factors in determining whether to grant reimbursement and the amount of reimbursement...", such as whether the parents gave "meaningful" notice, whether the district "had been given a reasonable opportunity to complete the process of evaluating...and making a placement recommendation, "the existence of other, more suitable placements, the effort expended by the parent[s] in securing alternative placements[,] and the general cooperative or uncooperative position of the school district." The court noted that the lower court could consider the reasons

for placement, which in this case included not only the student's disabilities, but also unrelated reasons ("i.e. substance abuse and behavioral problems"). As noted by the dissent, the court did not "compel a finding of reimbursement on remand."

Lesson Learned: As I said last month, "equity" essentially means "fairness". The lesson here for school districts goes back to having effective child find systems in high school and, when a tuition reimbursement situation arises, to keep an open mind and cooperative spirit. The lesson for parents is to meaningfully engage in the special education process, including trying options, before concluding that the public school can't meet the student's needs.