8th Circuit holds that private placement need not satisfy a least-restrictive environment requirement

CB v. Special School District No. 1 (8th Circuit 2011): IHO awarded reimbursement to parents for the costs of a private placement. The district court reversed the IHO finding that although the public school had not provided the student with a FAPE, the private school was not appropriate because the student body was comprised mostly of students with disabilities. The 8th Circuit reinstated the IHO’s ruling.

We conclude that the mainstreaming preference of the IDEA does not make Groves an inappropriate private placement under the circumstances. The statute calls for educating children with disabilities together with children who are not disabled "[t]o the maximum extent appropriate." Id. (emphasis added). Here, the School District failed to develop an IEP that made available a free appropriate public education. At that point, C.B.'s parents had a "right of unilateral withdrawal," Florence Cnty., 510 U.S. at 13, and a right to reimbursement for private tuition, so long as the placement was "proper under the Act," Burlington, 471 U.S. at 369, and the award "furthers the purposes of the Act." Forest Grove, 129 S. Ct. at 2493 n.9.

The overriding purpose of the Act is to provide an education for disabled children that is both free and appropriate. The Act was designed, as the hearing officer noted, "to open the door of public education to handicapped children on appropriate terms." Rowley, 458 U.S. at 192. But once the School District failed to fashion an IEP that made available a free appropriate public education, it did not frustrate the purposes of the Act for C.B.'s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.

The parents were not required to allow the District another opportunity to try yet again with a different IEP that featured the CLASS program when the District did not propose that alternative in any of the IEPs that preceded C.B.'s withdrawal. Reimbursement for the costs of enrollment in a private school is authorized if the hearing officer finds that the District "had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii)(emphasis added). A less restrictive environment is the ideal, but C.B.'s move to Groves after years of frustration in the public schools is a far cry from "the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes" that concerned Congress. See Burlington, 471 U.S. at 373. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be "proper" under the Act. See Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83-84 (3d Cir. 1999); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998).

Aside from the concern that Groves educates primarily children with disabilities, there is no doubt that it was a proper placement for C.B. As the hearing officer summarized:

Groves offers the Student teaching methods and programs that the School District has not provided. In addition to these methods and programs, the ability to group and re-group students throughout the day to ensure reading skills are reinforced across subjects sets Grove[s] apart. Moreover, the District's own teachers thought that Groves is an appropriate place for the Student. His mother has seen an "explosion" of learning since the Student entered Groves.
We conclude that the placement at Groves was proper under the Act, and that reimbursement for tuition paid by C.B.'s parents to Groves for the 2008-2009 academic year is not precluded by the statute's preference for education in the least restrictive environment.

9th Circuit affirms award of full reimbursement where private school provided only some of services student needed

C.B. v. Garden Grove (9th Cir. 2011): Guardian placed the child privately and sought reimbursement. The ALJ found that the district had not provided the child with a FAPE. The ALJ awarded only partial reimbursement reasoning that the private placement did not provide a program designed to address all of the child’s needs. The District Court rejected the ALJ’s conclusion and the District's argument, that reimbursement is warranted only when a private placement provides the full range of educational services that a disabled student requires. The District Court held that “because [the child] received educational benefits from all services that the Center provided, the district court awarded full reimbursement to Guardian for the cost of obtaining those services, along with transportation.” The 9th Circuit affirmed the District Court rejecting the school district’s argument that “because the Center could not meet some of C.B.'s additional needs (such as instruction in arithmetic), the placement was not "proper" within the meaning of the IDEA.” Interestingly, the 9th Circuit adopted the 2nd Circuit standard from Frank G.,
       

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d. Cir. 2006)

The Court then applied the standard to the facts of the case and found that the fact that the private placement delivered “many, but not all, of the special education services that [the student] needed” was sufficient to satisfy the standard.

SDNY rules in part for parents on reimbursement claim; interesting equities analysis

R.B. and H.Z., on behalf of C.Z., 09-CV-7758, decided May 5, 2010 (SDNY 2010): Parent placed the child privately and sought reimbursement. The private placement was a general education program supplemented by a separately paid for special education program. The IHO ruled in favor the parent awarding reimbursement for the whole shot. The SRO reversed. The SRO found that the parent had failed to demonstrate the appropriateness of the general education portion of the program. The SRO also found against the parent on the equities for failure to give proper notice. The SDNY reversed in favor of the parents, but only with respect to the private school special education component of the claim. Thus reimbursement was limited to a fraction of the total claim. The Court’s analysis of the equities is worthy of some exposure. The Court held that

Plaintiffs’ obligations under the IDEA’s notice requirement were not triggered because the DOE never provided plaintiffs with a Final Notice of Recommendation (FNR). Indeed, Plaintiffs could not have informed the DOE that they were “rejecting the placement proposed by the public agency” because the DOE never made a placement recommendation for Plaintiffs to reject.

The DOE had also advised the Plaintiffs in writing that the child had a right to continue in the current placement pending receipt of an FNR. Of note, the Plaintiffs did not challenge the IEP; rather, they only challenged the failure to offer a placement in which the child could receive the recommended services.
        Finally, and of particular interest, the Court found that the parent’s willingness to cooperate with the DOE was evidenced by their purchase of tuition insurance at a cost of $2000, “an expense they are unlikely to have made had they been determined to reject a public placement.”

SRO reverses IHO and awards reimbursement

SRO 10-007: This case is worth reading. The child presents as multiply disabled with significant behavioral difficulties. After much ado, the parents placed the child into a private school and sought reimbursement. The IHO wrote a cursory one and a half page decision denying reimbursement. Even Paul Kelly, who finds merit in virtually everything pro-district, would not save this one. After castigating the IHO for failing to follow requirements for proper decision writing, SRO Kelly then found for the parent on a number of different grounds including 1) the district failed to sufficiently evaluate the student's extensive behavioral needs before making program and placement recommendations in the June 2009 IEP, therefore the recommendation was based upon insufficient evaluative data, 2) the specific BOCES placement did not have the recommended 12:1+1 program, 3) the district's failed to meet its burden to show that a 6:1+1 program was substantively appropriate for the student and was in the LRE, and 4) the district's recommendation for a 6:1+1 program was made with insufficient parent participation. The SRO then went on to find that the private placement (West Hills) was appropriate although the child had only been there for a few weeks at the conclusion of the hearing.

Significantly, the SRO denied reimbursement for related services. West Hills is operated under the auspices of the Gersh Academy. The related service providers are Gersh employees who are "available everyday" but are only on-site at West Hills two to three days per week providing services to their assigned students unless they are providing additional student consultations, training or participating in team meetings. SRO Kelly found that it was unclear what needs were being addressed by the related services providers and that thus “the parents have not met their burden to show that the therapy sessions and counseling sessions were appropriate to meet the student's unique needs in these areas.”

SRO upholds reimbursement award to parent of home schooled student

SRO 09-033: District failed to offer a placement. Soon after the school year began, Parent notified the District(NYC) that she intended to home school her child. She then cobbled together a program that included 1:1 services from Lindamood-Bell among other things. IHO awarded reimbursement to parent despite the failure to provide notice of intent to seek reimbursement. SRO affirmed emphasizing that Parent’s ongoing efforts to work with the District significantly factored into his decision.

SRO excuses parent failures in awarding reimbursement

SRO 08-088: SRO Paul Kelly reversed an IHO denial of reimbursement. Kelly excused the failure by the parent to allege in the hearing request that the district’s proposed placement was unavailable at the start of the school year. He found that the issue had been litigated at hearing without objection by the district, and that that thus excused the failure by the parent to raise the issue in the hearing request. He then excused the parent’s failure to adequately inform the district of her concerns in the notice of intent to seek reimbursement. His rationale was that it was reasonable for the parents to place their child in 07-08 after the district failed to offer a placement in 07-08 and that the failure by the parent to detail their concerns did not prevent the district from addressing their concerns.

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.