The Supreme Court has issued its much anticipated decision in the Forest Grove matter ruling on the ability of parents of a student who has not been qualified for special education to seek tuition reimbursement under the IDEA. While there have been predictions of doom and gloom were the Court to reach the conclusion it did, that parents in this circumstance may seek reimbursement, a review of the analysis and facts of Forest Grove reveal that in the end the analysis of Burlington and Carter remain intact.

In Forest Grove, the student had been in the District for eleven and a half year with recorded history of trouble maintaining attention in class and completing assignments, which apparently got progressively worse. The parents requested that the District evaluate the student for special education needs, which it did and the District found that the student was not eligible. It is important to note that the evaluation was found to be legally inadequate. Shortly thereafter, the parents removed the student from the District and placed him in a private placement and then sought tuition reimbursement from the District.

The Forest Grove Court starts with the same analysis that has been used in tuition reimbursement for years: First, did the District fail to offer a FAPE? Second, is the private placement appropriate for the student? Finally, does a balancing of the equities weigh in favor of awarding reimbursement? Those familiar with these types of case should recognize the analysis, as it remains unchanged.

In looking at the first issue, the Court held that the failure to properly identify a student in need of special education is by definition a denial of a FAPE. The Court explains, “when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Accordingly, so long as districts properly evaluate and identify students as well as offer appropriate programming, there is no increase in the likelihood that they will be liable for tuition reimbursement.

In looking at the last factor, the Court notes that the equities must also be considered. Included in this is the notice of the placement given by the parents to the District and the opportunity of the District to conduct an evaluation. These factors may be considered and, when appropriate, would justify a denial of tuition reimbursement.

The real lesson of the Forest Grove case is that districts continue to have a child find obligations and districts that meet that obligation have nothing to fear from Forest Grove. On the other hand, for district that have some problems with child find, Forest Grove should serve as a wake up call to show that student who are not properly identified have at their disposal all of the provisions of IDEA, including claims for tuition reimbursement.

Tom F.: the decision that isn't

Mark Fitzgerald is again our guest blogger, writing about the U.S. Supreme Court's non-decision about tuition reimbursement.  Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information. 

In a one sentence decision, an evenly divided U.S. Supreme Court in Board of Education of the City School District Of New York, No. 06-637, --- U.S. --- (2007) (Justice Kennedy did not participate) affirmed the decision of the Second Circuit Court of Appeals in finding parents need not accept a public school offer of a free appropriate public education before enrolling their child into a private school placement for purposes of the Individuals With Disabilities Education Act (“IDEA”).  Substantively, however, the Court “punted” on analyzing the statutory constructs of the IDEA to determine whether such a right exists for parents who have never accessed public education prior to unilateral private school placement. Therefore, the dispute surrounding this issue was not put to rest late last week.

With this “decision,” the Supreme Court affirmed an equally short decision by the Second Circuit, which had vacated and remanded the holding of the trial court in light of the decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.), cert. denied, --- U.S. ---, 127 S.Ct. 3054 (2006). Therefore, while the decisions, or lack thereof, of both the Second Circuit and the Supreme Court together combine to form a modest sized paragraph, our analysis must turn to the comprehensive, yet peculiar decision by the Second Circuit in Frank G. in order to glean what the Supreme Court decision means for school entities, if anything at all.

For practical purposes, the Frank G. decision does not reveal anything significant that school entities did not already know: LEAs have an ongoing obligation to identify, evaluate, and propose an appropriate program and placement to all eligible children within the boarders of the LEA. However on a legal level, the results of Frank G. reveal a split among the federal appeal courts regarding the need for parents to accept a district’s offer of FAPE before unilaterally removing the child from the public school system and seeking tuition reimbursement at a private school.

In analyzing the tuition reimbursement provision of IDEA, Frank G., unlike the trial court in Tom F. and the First Circuit in Greenland School District v. Amy N., 358 F.3d. 150 (1st Cir. 2004) concluded the statute is ambiguous on the issue of whether parents were required to previously receive special education services before enrolling the student in a private school. Therefore, in applying the canons of statutory interpretation to an otherwise ambiguous provision of the IDEA Frank G. concluded reimbursement is available to parents who do not accept a district’s offer of FAPE before enrolling their child into a private program.

Greenland involved a similar tuition reimbursement dispute and the court concluded otherwise, that the IDEA limits tuition reimbursement to parents who have children who had previously received “special education and related services” while in the public school system or perhaps those who at least timely requested such services while the child is in public school.

With the Supreme Court failing to substantively analyze the language of the IDEA and the case law accompanying this issue, the question of whether parents are required to accept an offer of FAPE before seeking tuition reimbursement will likely arise another day. Until resolved by the Supreme Court, Frank G. and Greenland remain in conflict with each other.

In many respects, regardless of Frank G., school districts still control their own destiny regarding liability for tuition payments. While Frank G. concluded a parent need not accept a district’s offer of FAPE and go through the process of enrolling the child into public schools, the court did say a school district must still be afforded the opportunity to evaluate and propose a program and placement for the child at issue, which is consistent with the earlier holding in Greenland. Therefore, so long as a district appropriately identifies a student’s potential need for specially designed instruction and follows such identification up with appropriate evaluations and programming, a district should have little concern.

 A coda to the problematic Frank G. decision is the ever increasing propensity for judges to “Monday Morning Quarterback” the decisions of impartial hearing officers and appeals panels by considering new evidence not available at hearing.

The Student in question in Frank G. had attended a parochial school prior to his parents seeking an evaluation by district. While the Student was attending the parochial school, the district completed its evaluation and found him eligible for special education. The district subsequently proposed a program and placement in the district. The parents rejected the offer and sought private placement at a new private school (“Upton Lake”).

Evidence presented at the administrative hearings revealed the proposed program and placement offered by the district was inappropriate, a point later conceded by the district. The hearing officer further concluded the proposed private school placement was likewise not appropriate. In doing so, , the Hearing Officer relied on evidence of regression in various academic areas as well as a program and placement that was not reasonably calculated for the Student. A state appeals officer affirmed the decision.

On appeal, the trial court reversed the administrative decisions by considering post-hearing evidence. While the trial court acknowledged that Upton Lake provided the Student with neither an individual aide nor a direct consultant teacher, it was satisfied that the Student’s regular education teacher worked with the Student “when possible.” The court was further persuaded by the Student’s academic progress, which was generally memorialized through one administration of the Stanford Achievement Test.

Ironically, the trial court was willing to overlook the same shortcomings with the private school that resulted in liability to the public school, an all too-frequent and unfortunate irony in these cases.

New proposed federal rule will take away Medicaid support for special education services

On Friday, September 7, 2007 the federal Department of Health and Human Services (“HHS”) announced its proposed rule change to eliminate Medicaid reimbursement to schools providing certain administrative services and transportation.  The proposal is lengthy, but as the summary states:

under the proposed rule, Federal Medicaid payments would no longer be available for administrative activities performed by school employees or contractors, or anyone under the control of a public or private educational institution, and transportation from home to school and back for school-aged children with an Individualized Education Program (IEP) or an Individualized Family Services Plan (IFSP) established pursuant to the Individuals with Disabilities Education Act (IDEA).

The proposal rule would not affect federal reimbursement for direct medical services such as speech and physical therapy. 

Regarding transportation, HHS states “[t]ransportation from home to school and back is not properly characterized as transportation to or from a medical provider.” “School-age children, including children with an IEP or IFSP,” says HHS, “are transported from home to school primarily to receive an education, not to receive direct medical services.” Yet schools are required to provide medical services as a related service and, indeed, HHS will reimburse for PT, Speech, etc. provided at the school. Under the proposed rule, HHS will also reimburse transportation from school to a direct medical service provider - even if it is for the same services as provided in the school (this later scenario, however, would probably violate anti-segregation requirements). But ignoring HHS’s own funding and intra-federal policy inconsistencies, the reality is that most children receiving these reimbursable medical services receive them only at school. Transportation, for them, is equally essential for both education and the reimbursable services. No doubt this is why reimbursement for transportation has been permitted.

HHS’s justification for eliminating these reimbursements is that the Department of Education via the IDEA already ponies up the funds, so HHS should not pay. “The IDEA authorizes funding through the U.S. Department of Education (not Medicaid) for special education and related services for children with disabilities. . .” HHS also says “[s]tates receive Federal aid under IDEA to assist public schools in delivering mandated services in pursuit of a free appropriate public education. . . . Schools must perform these activities pursuant to education requirements, even in the absence of Medicaid payment. . . .” Although public schools must indeed provide the services, HHS and incoherent federal policies cynically worsen the already hollow federal promise to fully fund the IDEA special education mandate.

According to the notice, “[t]he proposed rule is estimated to reduce Federal Medicaid outlays by $635 million in FY 2009 and by $3.6 billion over the first five years (FY 2009-2013).”   HHS explains that “the estimated annual Federal savings under this proposed rule is only about one eighth of one percent of total annual spending on elementary and secondary schools (in 2004 total elementary and secondary spending was $453 billion according to the Statistical Abstract of the United States. . . .” Especially compared to other fully-funded federal initiatives  (or even an Alaskan bridge or two), this is but a pittance, even more so per child. But it is a pittance taken, ultimately, from needy children and who have always been, and still are, the poorest of the poor.

Elimination of federal financial support to any degree on grounds that another agency is supposed to pay is bad policy and, in the absence of proper and full funding of the special education mandate, is disingenuous.  It is illustrative of the penurious federal attitude toward the nation’s special needs population.  Such a rule change simply should not occur without concomitant IDEA funding increases.

If nothing else, HHS’s justifications demonstrate a profound need to rationalize the federal mandates for special needs children (education, medical, health and welfare, etc.) and to finally fulfill the so-far phantom federal promise to fully fund the special education mandate, which, admittedly, is not HHS’s concern.  But it is, after all, when IDEA 2004 was passed, the federal government's promise, again, to fully fund (Cong. Rec. S11657-658 (Nov. 19, 2004), among many other statements) the federal share of special education (which is only 40 percent of the total cost).  Regardless whether this agency or that agency is supposed to disburse funds, In the end, special needs children bear the cost of the broken promise.

HHS will accept comments regarding the proposed rule change, which may be submitted, among other means, electronically. More information on submitting comments is available in the HHS notice.

OSEP letters January - March 2007

In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.