November 1996, Vol. 10, No. 3 ~~ Return to the Article INDEX
An "Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
SCHOOL DISTRICT REQUIRED TO PAY
PRIVATE SCHOOL TUITION PENDING APPEAL
In Susquenita Sch Dist v Raelee S., 24 IDELR 839 (3rd
Cir, 1996), the United States Court of Appeals for the Third Circuit
ordered a school district to pay a student's private school tuition and
transportation costs pending its appeal of a hearing panel's decision that
the private school was the appropriate placement.
In Susquenita, the parents of a ninth grade student with a
learning disability disagreed with the school district's proposed IEP and
unilaterally withdrew the student from the district and placed her in a
private school for the learning disabled at the beginning of the 1994-95
school year. The parents sought a due process hearing seeking
reimbursement. The hearing officer found for the district, and the parents
appealed. The state appeals panel reversed the hearing officer, finding
that the child's IEP was deficient in several areas in that the
educational program proposed by the district was not reasonably calculated
to provide meaningful benefit. Furthermore, the appeals panel found that
the private school was the appropriate placement and ordered reimbursement
for tuition and transportation costs. More significantly, the panel
specifically stated that the private school was the stay put placement
pending any subsequent appeals.
The school district appealed the panel's decision on a number of grounds
including the stay put and tuition reimbursement issues. The school
district also sought a stay of the appeals panel order as to these two
issues, which the court denied. The district appealed.
On appeal, the district argued that it had no financial obligation to
the parents because the private school was not the appropriate stay put
placement. According to the district, placement at the outset of
administrative proceedings [in this case the public placement] is "fixed
for the duration of the proceedings and cannot be altered by an
administrative ruling in the parent's favor." On the other hand, the
parents argued that a new pendent placement was created with the state
hearing panel's decision and, therefore, the school district must bear the
financial burden of paying for private school tuition for the student. The
court agreed.
Noting that Section 1415(e)(3) of IDEA provides, "during the
pendency of any proceedings conducted pursuant to this section, unless the
state or local educational agency and the parents or guardian otherwise
agree, the child shall remain in the then current educational placement,"
the court held that the state appeals panel's ruling in favor of the
parents constituted an agreement for the purposes of that section. See
Burlington v Dept of Ed, 741 US 359 (1985). Therefore,
from the point of the panel's decision forward, the child's stay put
placement was the private school and the school district was obligated to
pay for that placement.
The school district further contended that any financial obligation that
it had to the parents did not start until after the appeal process had
been fully exhausted. According to the district, Burlington
mandated this result in that any financial obligation that the district
may have does not vest until "such time as the propriety of the
placement is conclusively established." The court disagreed,
declining to adopt such a restrictive reading of Burlington. The
court noted that nothing in IDEA, the legislative history, or case law
interpreting the Act indicated a congressional intent to shield districts
from financial responsibility prior to the end of the appellate process.
Furthermore, the court found the Supreme Court's decision in Burlington
supporting retroactive reimbursement seemed to favor the interim
assessment of financial responsibility on the district. The court
concluded that the purpose of IDEA, namely, to ensure that every child
receives FAPE, "is not advanced by requiring parents, who have been
successful in obtaining a ruling that the proposed IEP is inadequate to
front the funds for continued private education." Accordingly, the
court affirmed the decision of the lower court and ordered the school
district to reimburse the parents for the private school placement.
IMPLICATIONS:
The ruling in this case is not unprecedented. The court noted that the
Ninth Circuit held similarly in Clovis v Office of
Administrative Hearings, 903 F2d 635 (9th Cir, 1990). Federal district
courts in Hawaii and New York have similarly held that a decision by a
state appointed hearing officer upholding a parental request for
residential placement constitutes an agreement between the state education
agency and the parents to change the placement. There is also a statement
to this effect in the U.S. Supreme Court's decision in Burlington Sch
Comm v Dept of Ed, 1984-85 EHLR 556:389 (1985). On the other
hand, the conclusion doesn't make sense given federal requirements that
the state review officer is to conduct an impartial review and make an
independent decision. These impartiality requirements would seem to argue
against a state review officer acting on behalf of the state education
agency in the "reaching an agreement" sense.
If the 6th Circuit (in which Michigan is located) were to hold similarly
to the 3rd Circuit (Susquenita and Clovis), timely action
in potential residential placement situations would be even more
important. See "Resident Placements--Are You Prepared?"
on page ___ of this newsletter to practice tips in this regard. Also
remember that IDEA requires annual reviews for eligible students even
during the pendency of due process hearings and any appeal process. This
gives districts the opportunity to update present level of performance
data on the student, address problems, if any, exposed during the due
process hearing, develop appropriate alternatives to the parent selected
residential placement, and hopefully at least minimize or foreclose
damages from the date of the IEPC where FAPE was provided.
In addition, it is interesting to note that the court did not address
the question of whether the school district could ultimately recover
tuition payments from the parents if the district was ultimately
successful in its appeal. However, the court did note that in Clovis,
the Ninth Circuit found the district's obligation to pay was absolute
regardless of the outcome on the merits.
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IS THERE ANY GOOD NEWS?!?
It seems like the only news in special ed circles these days is bad
news--either a bad court decision, another bad problem, somebody's ill,
the Legislature is considering doing something bad, etc., etc., etc. In
short, good news seems hard to come by. But, there is a lot of good
news--it's just that it doesn't come to mind as quickly as bad news when
we're passing information along. Well, in an attempt to bring more good
news into your life, OP News is going to attempt to have a new
feature each month, namely at least one article about good news!
Regrettably, the editors of this publication happen to be all lawyers
representing school districts. Tragic as it is, we basically get
information about and handle only problem cases which rarely are good
news. While we frequently get good results (which we are going to make
much more of an effort to share) you in the field get good results even
more frequently on a day in, day out, basis. We would like you to share
those results by sending us a letter, faxing us the message, or giving us
a call where the good news results came about due to a strategy, approach,
or what have you that might be of benefit to other districts confronted
with a similar problem or situation. Since in the hectic day to day crunch
of activities even taking the time to make such a call or send a fax may
be difficult to find, we are offering an inducement--specifically a
bouquet of flowers! If your good news is selected you will receive the
flowers to remind you of the good news for a while--while you continue to
deal with all of the bad news you'll be hearing. Please give it a try for
we look forward to hearing from you--and getting your good news!
RESIDENTIAL PLACEMENTS (contd. from p. 6)
Education's procedures on approval of private placements (dated November
1989) and check on any conditions or procedures within its ISD plan
concerning residential placements. Last, in some counties where joint
agency agreements relating to residential placements might be feasible
with CMH and/or juvenile courts, a check should be made with those
agencies with regard to their practices, policies, and procedures relating
to residential placements.
Caution:
Potential residential placement situations can arise in any
district--including those in the more rural areas. In short, it can happen
to your district so don't wait--take the above suggested steps so that
your district is in a position to address potential residential placement
situations effectively and appropriately.
RESIDENTIAL PLACEMENTS--ARE
YOU PREPARED?
As much as school districts want to suppress the thought, under IDEA,
residential placements are a part of the continuum of services which must
be made available to meet the needs of students with disabilities.
Further, given the lack of appropriate programming available in this state
through the Department of Mental Health or the Family Independence Agency
(formerly DSS), the likelihood of school districts having a student
requiring residential placement has risen dramatically. Not only are such
placements very expensive (ranging from a cost of approximately $35,000
upwards to $125,000 per year), but there are related costs in terms of
transporting the student and parents to and from the school, etc.
While IDEA specifically provides that a residential program must be
provided when such is "necessary" to provide special education
and related services to a child, the "test" of necessity in the
Sixth Circuit (where Michigan is located) has never been clearly defined.
Residential placements are complicated even when parents seek them at the
onset as a special education program. For example, when the need for a
residential placement involves a response not only to the child's
educational needs, but also possibly the child's medical, social,
emotional, or family problems, the determinations of what's necessary and
why become extremely difficult. Residential placement situations become
even more complicated when what appears to be parents exercising private
options converts to demands for FAPE and reimbursement. For these reasons,
as well as the large amount of dollars typically in question, residential
placement disputes are the most difficult to settle and the most expensive
to take to hearing.
Given the serious situation a potential residential placement situation
or dispute presents, district staff need to have an alert system ready to
detect such situations and then act promptly in "red flag"
situations. In these regards, we would offer the following
recommendations:
Staff Training:
Both special and general education staff (particularly principals,
school secretaries, counselors, etc.) must know that residential
placements are a part of the continuum of services under IDEA (and
possibly 504) and, accordingly, a potential responsibility for
their district (i.e., in appropriate circumstances).
Additionally, these same staff must be alert for possible signs that
parents might be considering a residential placement for their child.
(Being alert to signs doesn't commit the district to paying for
residential placement, but allows the district to be proactive as will be
described below.) Typical examples of such signs would be:
1. Comments by parents or the student that private schooling is being
considered.
2. Requests that records be sent to or that forms
be filled out by district staff to be sent to private schools.
3. Drug abuse, truancy, psychiatric hospitalization, severe behavioral
problems at home, significant criminal involvement or similar types of
problems--even where the student's academic or behavioral
performance in school is not affected in the view of district staff.
Staff must be trained that if they even think they see
a sign of potential parental consideration of residential placement, they
must get to a special education administrator fast to at
least discuss the situation.
Appropriate Administrative Action in Response:
Upon receiving advice of a possible sign that the parents are
considering residential placements, the special education administrator
should immediately have the situation checked out to ascertain the
parent's intentions--are they considering residential placement, why, and
who the parents are considering to pay for it.
Where the parents have a child who has already been identified as
disabled under IDEA or 504, or you have any reasonable cause to
suspect the child might be disabled under IDEA or Section 504, give
the parents notice of their specific rights under IDEA and 504. Further,
give the parents any generic "directory" or handbook your
district provides parents with regard to the array of services available
to them within the district, who to contact if they have additional
questions, etc. Provide a cover letter to the parent rights handbook and
directory which documents the transmittals and contains notice that
residential placements are part of the continuance of services which must
be made available if necessary to provide special education and related
services to eligible students with disabilities. While districts may be
somewhat hesitant about informing parents of their obligation to provide
residential placements even under these circumscribed circumstances, they
should do so for two reasons. First, the statement says no more than the
district will comply with the law. Second, it's just plain smart as a
matter of strategy. By being "up front" with the parent from the
outset, the district will be in a position to evaluate the student and the
entire situation in order to make a fair determination as to whether a
residential placement is necessary or not (and, if so, where, etc.). If
rights and related information are not given to the parent at the outset,
the chances are sooner or later they will find out their rights and/or
opportunities to argue certain rights. But then, the district will be
accused of having not provided rights, the child would typically already
have been placed in the private school (which makes evaluation much more
difficult), and the parents will have already started incurring
significant expenses which will make resolution of the matter very
difficult.
If it is found the parents are considering the residential placement or
are seeking reimbursement for a placement already made, then the district
should immediately request of the parent various information, including: a
list of the professional persons who have treated/evaluated the student
within the last three years; a signed consent form to obtain records from
such persons and discuss such records with such persons; if the student is
at a residential facility the name of it and a consent to obtain copies of
all of its records concerning the student and to talk with its staff
regarding the student; copies of any correspondence or documents between
the parent and the residential school(s) considered
orrespondence/documents relating to any scholarship or other financial
assistance which the parent has sought/received; a copy of any contract or
other documents which the parents have entered into with any residential
facility; a copy of information regarding the programs/services offered by
the residential facility; copies of receipts/documentation of any expenses
for which the parents are seeking reimbursement; information regarding
possible sources (e.g., health insurance or other third parties) from whom
the parents might claim reimbursement for a portion of the
tuition/expenses; and consent/arrangements to evaluate the student further
and/or visit/observe the student if at a residential facility already.
If the district is alert and/or lucky it will have an opportunity to consider residential placement at an IEPC before such placement takes place (i.e., before a parent acts unilaterally and then seeks reimbursement based on an alleged failure to provide FAPE). Even if this is not the case, and the parent approaches the district for the first time about residential placement after a unilateral placement has already been made, e.g., requesting reimbursement, requesting an IEPC, or requesting a due process hearing, In potential district liability will basically run from the date of an IEPC at which residential placement is considered but rejected by the district. When such a situation is present, districts should move with all due diligence to collect information and evaluate the student in the situation so as to be in the position to hold an IEPC forthwith. (If a district is found to have been dilatory in holding an IEPC, its liability could be deemed to start before the IEPC is held.) In considering its options, a district should be acquainted with the State Board of
(See RESIDENTIAL PLACEMENTS, p. 3)
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