4th Circuit holds that partial reimbursement must be considered

M.S. v. Fairfax, 553 F.3d 315(2009): Parents made a multi-year reimbursement claim for private placement. IHO found that the district’s IEPs were not appropriate but that the private placement was also not appropriate. The district court affirmed.

year by year analysis
The 4th Circuit held that the district court erred by not separately considering the appropriateness of each year at the private placement reasoning that “what is reasonably calculated to confer some educational benefit on the child may change over time”.

Court must consider partial reimbursement
The district court further erred by not considering whether partial reimbursement might be appropriate. The 4th Circuit held that the district court “must also consider whether, given the equitable nature of the IDEA, see *325 Burlington, 471 U.S. at 374, 105 S.Ct. 1996 (noting that “equitable considerations are relevant in fashioning relief”), some partial reimbursement is appropriate for any given year.” The Court further stated that

[t]he Supreme Court has instructed that “[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (emphasis added). In determining whether partial reimbursement is appropriate, “the district court may consider the following factors, among others: the existence of other, perhaps more appropriate, substitute placements, the effort expended by [the] parents in securing alternative placements[,] and the general cooperative or uncooperative position of [the school board].” Adams, 195 F.3d at 1151.

equities and statute of limitations
The 4th Circuit rejected the school district’s complaint “that any equitable considerations weighing in favor of the parents' request for reimbursement are outweighed by the parents' delay in filing this suit until 2004, after M.S. had already spent two years at Lindamood-Bell” stating that

[w]e decline the opportunity to impose filing deadlines not issued by Congress when authorizing these equitable remedies. First, the parents have presented evidence that the delay was due to their unsuccessful efforts to negotiate with Fairfax County to resolve their concerns out of court. Second, the Supreme Court has recognized that “the review process is ponderous,” and held reimbursement to be an appropriate remedy for precisely that reason. Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Even if the administrative review process had been completed within Virginia's 45-day statutory window, “[a] final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed.

findings of fact, legal conclusions and deference
Both the hearing officer and district court made findings that Lindamood-Bell had fallen short in several significant respects, namely in the failure to provide the life skills and vocational training and the group interaction needed by M.S. for his instruction.

The 4th Circuit recognized, as do all the Circuit Courts, the principle of deference, however, the Court distinguished between deference to findings of fact and the legal conclusions drawn from those findings of fact. This is of extreme importance in New York where the SRO appears committed to the eradication or extreme limitation of the federally prescribed right to reimbursement. The Court stated

We accord great deference to such findings under our precedent. See MM ex rel. DM, 303 F.3d at 531 (holding that “findings of fact made in administrative proceedings are considered to be prima facie correct,” and that “where a district court has heard and considered additional evidence, ... we review its findings of fact for clear error”). Whether the identified shortcomings of Lindamood-Bell were of such a nature as to preclude the realization of an educational benefit for M.S. is, of course, for the trier of fact to determine on remand. However, they do not preclude as a matter of law the possibility that the one-on-one instruction provided by Lindamood-Bell warranted some reimbursement. Therefore, if the district court, on remand, again determines that full reimbursement for Lindamood-Bell is inappropriate for one or more school years, it must nonetheless consider whether partial reimbursement is appropriate in any year for the one-on-one services that Lindamood-Bell provided to M.S. Here, the HO and the district court concluded that M.S. needed significant one-on-one instruction that Fairfax County failed to provide for 2002-2005. M.S. v. Fairfax County Sch. Bd., No. 1:05cv1476, 2007 WL 1378545, at *10-*11, 2007 U.S. Dist. LEXIS 33735, at *32-*33 (E.D.Va.2007). Lindamood-Bell provided thirty hours per week of one-on-one instruction in the “building blocks” of communication. If the district court determines that any time spent at Lindamood-Bell during any or all of the 2002-2005 school years was “reasonably calculated to enable [M.S.] to receive educational benefits,” M.S.'s parents may be reimbursed for such period as the district court deems appropriate. Carter, 950 F.2d at 163 (internal quotation marks omitted); see also Burlington, 471 U.S. at 369, 105 S.Ct. 1996.

least restrictive environment for private placement
The restrictive nature of a private placement may be considered as a factor in the determination of appropriateness of the parental placement, but not as a dispositive requirement.