4th Circuit upholds reimbursement for home schooling placement

Sumter v. Heffernan (4th Cir. 2011): Parents pulled their autistic child from the public school system and set up a program for him at home. They then sought reimbursement for the costs of an ABA therapist. In what appeared to be a close decision, one that prompted a dissent in part, the Court ruled in favor of reimbursement. Of particular interest is the 4th Circuit’s rejection of a strict application of the LRE requirement as applied to a parental placement. The 4th Circuit joins the 8th Circuit as Courts recently adopting a looser standard for LRE as a factor in determining the appropriateness of the parental placement.

SDNY reverses the SRO yet again

G.B. and L.B. on behalf of N.B. v. Tuxedo, 09-CV-859, decided September 30, 2010: District sought to remove autistic child from an integrated class. Parents disagreed, removed the child from the school, placed her in a private school and sought reimbursement. The IHO and the SRO ruled against the parent. The District Court reversed in a detailed opinion finding that an integrated class was the least restrictive environment in which the child could receive an appropriate education. In doing so, the Court applied the test adopted by the 2nd Circuit in P. v. Newington. Of note, the Court stated that “boilerplate, conclusory language cannot satisfy the requirement that the CSE seriously consider …including the child in a regular class with such supplementary aids and services as appropriate” and that the Court need only determine that with appropriate support and services, the child could make progress toward her IEP goals in the regular education setting. The Court found that uncontradicted evidence of progress in an integrated setting, expert testimony supporting the appropriateness of the integrated setting, and even testimony from district witnesses strongly supported the conclusion that an integrated class would be far more beneficial for the child than a self contained class.

The Court addresses the deference issue by noting that the IHO and SRO improperly ignored evidence and failed to apply the test for determination of LRE. Also, the Court treated the LRE issue as one for which deference is not owed because it is not a matter of educational policy, but rather the enforcement of a requirement of the IDEA.

Finally, this case is not over. The Court ruled that the amount of reimbursement should be reduced for the parent’s failure to provide proper, timely notice. The Court ordered additional briefing on the extent of reduction.

SRO upholds remand to CSE; rejects argument that IHO should have made program determinations

SRO 08-154: Parents sought placement in a less restrictive program for their child. They prevailed on their claim that the CSE was improperly comprised. IHO concluded that the failure to have a regular education teacher at the CSE was a denial of FAPE. He annulled the IEP and remanded for development of a new IEP. But, the parents had raised a number of issues regarding the appropriateness of the CSE recommendations. The parents sought an IHO order compelling the district to provide the program sought by the parents. The parents then sought the same on appeal. In the meantime, the CSE met after the start of the school year and recommended essentially the same program that the parents had previously rejected. SRO Paul Kelly rejected the parents argument. He found that there was insufficient evidence from which to conclude that the parents’ proposed program was appropriate to meet the child’s needs in the LRE.

This case presents a variety of interesting issues not the least of which is the futility of the review process. The parents submitted an amended hearing request in July of 2008. The SRO decision was issued February 18, 2009. The student is effectively punished for the district’s sin–the failure to have a properly comprised CSE. The parents did all they could possibly do within the constraints of the system to address the problems in their child’s program and they are back at the starting point. Kelly ignores that it was the district’s burden to establish the appropriateness of its recommendations and the hearing officer’s obligation to assure the adequacy of the record. Kelly arguably improperly shifted the burden of proof to the parents to establish that their child could be educated in a less restrictive environment. This is very troubling as the law is meant to achieve the opposite.

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.

2nd Circuit adopts Oberti test for determination of LRE(least restrictive environment

P. v. Newington(2nd Circuit, decided October 9, 2008): The 2nd Circuit today adopted a case- and fact-specific test for determining whether a student has been placed in the least restrictive environment, considering whether, with the aid of appropriate supplemental aids and services, full-time education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.

in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has mader easonable efforts to accommodate the child in a regular classroom; (2) thee ducational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in aspecial education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test – whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

Federal Court Reverses NY SRO Again

Parent placed the child at a private school and requested a hearing at which she sought reimbursement. IHO ordered reimbursement; SRO reversed in 06-088. The Court in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ.(550 F.Supp.2d 420, 432 (S.D.N.Y.,2008)) focused on the district’s failure to offer a program in the LRE. The Court found that the SRO decision was not due deference reasoning that:

the SRO's decision does not enumerate the relevant factors or engage in an analysis of whether the IEP provided for a placement in the least restrictive environment. Because the SRO did not make any findings on this issue, the decision of the SRO is not entitled to deference with respect to whether the recommended placement in a special school with a 12:1:1 staffing ratio, and the subsequent offer of placement at PS 370 satisfied this requirement. Gagliardo v. Arlington Cent. Sch. Dist., 418 F.Supp.2d 559, 562 (“[W]here there are no administrative findings on an issue germane to the court's determination, deference would be inappropriate.”), rev'd on other grounds, 489 F.3d 105.

Additionally, and importantly, in finding that the parent had established the appropriateness of the unilateral placement, the Court distinguished its holding from Gagliardo II as follows:

The defendant relies heavily on the recent decision in Gagliardo II in support of its argument that the plaintiff's placement was not appropriate. In Gagliardo II, the Court of Appeals for the Second Circuit reversed the district court's judgment that had granted reimbursement, finding that the district court erred in concluding that the unilateral placement at issue was appropriate. However, in that case the court was addressing an administrative record where “the IHO, confronted with the same evidence, found that [the unilateral placement] was not an appropriate placement,” and the SRO had affirmed the IHO decision. Gagliargo II, 489 F.3d at 113. The court found that the district court had improperly afforded the IHO's findings no weight, particularly in light of the fact that the SRO noted that the IHO's findings were supported by the record. Id. at 114 n. 2. The court found that the IHO's finding was reasoned and supported by the record and therefore reversed the district court's judgment ordering reimbursement. Id. at 114. In contrast, in this case the IHO found that the unilateral placement was appropriate, and the SRO made no findings on this issue. This Court has given due weight to the findings of the state administrative officers, and based on its review of the record agrees with the determination of the IHO that the placement in the Legacy Program was appropriate. Therefore, unlike in Gagliardo II, this Court does not reach a different conclusion from the state administrative officers on the issue of whether the private placement was appropriate.

EXTENDED SCHOOL YEAR PROGRAMS AND SERVICES in New York State

See here for state ed Q and A document on extended school year(i.e. summer) programs.