Tara+Wagner's+Judicial+Review+Page

=__Focus: Reimbursement for Unilateral Placement__ =  Editor's Notes:
 * Case titles should be italicized.
 * Any acronyms or abbreviations should be spelled out the first time they appear in the document, especially if the audience is a mixed group who may not know what they mean.
 * Conjunctions should be preceded by commas.

__Superintendent's Memo__
Krishnamurti School District To: School administrators, teachers, parents, students, and community members Re: District Responsibility Regarding Parental Unilateral Placement in Special Education   In recent years, there have been a number of court cases regarding parents seeking tuition reimbursement after unilaterally placing their students in private school placements, for the purposes of special education. You get right to the point-- parents are placing children in private schools for SE services, and then seeking reimbursement. Do you think all parents whill know what "unilaterally" means? (SB) This right of parents has been upheld when children have been determined to have been denied a free appropriate public education (FAPE) from their public special education programs. Is this sentence intended to give them a heads-up that there has been a shift, or is it intended to give them history? A concern I'd have is that they may stop reading here and think, "It's my right and the school has to pay! GREAT!" How might you make this clearer? The word "denied" is key, so what is the "but" that follows that? (SB)    <span style="font-family: Helvetica,sans-serif;">

A current case heard by the Supreme Court in late April, Forest Grove School District v. T.A.//,// addresses the question of whether a provision in the 1997 IDEA amendment bars private school <span style="color: rgb(0, 0, 0);">reimbursement <span style="font-family: Helvetica,sans-serif;">for students who have not previsously received special education and related services. In a previous ruling, the Ninth Circuit agrees with the US Court of Appeals for the Second Circuit's reasonsing in the case of Frank G. v. Board of Education //(2//006), in saying that students who have not previously received special education <span style="color: rgb(0, 128, 0); font-family: Helvetica,sans-serif;"> <span style="font-family: Helvetica,sans-serif;">and related services can be eligible for reimbursement. In a two to one split <span style="color: rgb(0, 128, 0); font-family: Helvetica,sans-serif;"> <span style="font-family: Helvetica,sans-serif;">decision, the majority <span style="color: rgb(0, 128, 0); font-family: Helvetica,sans-serif;"> <span style="font-family: Helvetica,sans-serif;">stated that a catagorical bar would defeat the purposes of IDEA to provide children with disabilities with free and appropriate education. It also agrees with the Second Circuit that a categorical bar would lead to absurd results, such as lengthy times in unfavorable learning situations or students not being identifies as having a disability. The Supreme Court has not yet issued its ruling in this case. <span style="color: rgb(0, 0, 255); font-family: Helvetica,sans-serif;">I'm struggling with the flow just a little bit. Is this right? The SC is in the midst of hearing a case related to the topic, but hasn't made any decisions yet. The SC is currently considering findings from older cases, in which the determinations described above and below were made?? (SB) <span style="font-family: Helvetica,sans-serif;"> <span style="font-family: Arial,Helvetica,sans-serif; font-size: 12pt; color: rgb(0, 0, 0);"> <span style="font-family: Arial,Helvetica,sans-serif;">In the case of Frank G. and Diane G., Parents of Disabled Student Anthony G., v. Board of Education of Hyde Park, Central School District (2006), it was ruled that parents could be reimbursed for tuition relating to unilateral placement if the public schools denied a student access to a free appropriate public education and the private placement is determined to have conferred educational benefit. The court disagreed with the School Board and the decision in __Bd of Educ. V. Tom F.,__ No. 01-6845, 2005 WL 22866, at *3 (S.D.N.Y. January 4, 2005) which asserted that “where a child has //not// previously received special education from a public agency, there is no authority to reimburse the tuition expense arising from a parent’s unilateral placement of the child in private school.” The court stated that they believed that it was “unreasonable to suggest that Anthony’s parents were legally required to engage in such a useless and counterproductive exercise” as enrolling him in a public placement that would not confer educational benefit prior to unilaterally placing him in the private school (p. 26, *19). The court found that Section 1412(a)(10)(C)(ii) of IDEA does not prohibit reimbursement and therefore affirmed the decision of the district court.

From my position as the Superintendent of schools, I must urge parents, teachers, and school administrators to actively seek diagnosis and development of appropriate individualized education plans to meet the needs of our students within our public education system. We have a legal mandate, as well as a moral responsibility, to provide our students with a free appropriate public education. Servicing our students appropriately with their community peers within our community schools allows them to learn in the least restrictive environment. Should a student’s needs require more intensive programming that is only available in a private or non-public school setting, the school district should be involved in that determination with professionalism and within a timely manner. The districts policies and procedures regarding identification of disabilities and the development and implementation of specialized services can be found at our district website [|www.krishnamurtischooldistrict.org]. Individuals can also contact the district special education office at (123) 555-4567.

Our school system has thus far been successful in meeting the needs of our students without intensive legal intervention and I look forward to our continuing efforts for the betterment of all of our learners. Should the upcoming Supreme Court decision result in changes to our district policies, notification will be made in writing to all current school families and on our district website.

Tara L. Wagner, MS Ed, BCBA Superintendent of Schools

// All things are possible when there is love of the child ~ // Krishnamurti, __Education and the Significance of Life__

<span style="color: rgb(0, 0, 255);">Thanks for sharing, Tara! I'm looking forward to hearing more about the Supreme Court's findings!

My only real suggestion is to be really clear that parents, at least for now, are //not// //guaranteed// reimbursement as a "right", and that choosing to place a child in a private school for SE services may occur at their own expense if the placement is not made in collaboration with the school or system's IEP team. I'd also clarify that, when services are deemed necessary and can be provided by a public school in the system, the team determination is generally for public placement. Some of the key terms are unilateral (which they may not know), necessary, denied, and available. (SB)

<span style="color: rgb(0, 128, 0);">Tara - This is a very interesting topic that I do not know a lot about. Your explanation of the court cases and the effects of the decisions on school district policy is very clear. I wonder if more explanation or lead in at the beginning would help bring parents up to speed and prepare for the information included in the memo. It might help to build some of their background knowledge on the topic so that they can better understand the results of the cases. I highlighted a few typos is green:) Great approach to the topic and explaining to parents what you would like them to do to make the process work. Ellen

<span style="color: rgb(0, 0, 255);">The typos were mine; I attempted to fix some formatting that kept shifting as I was inserting comments, and had to retype a few things to get it right. So... I made the corrections on your behalf, Tara, and changed the font back to black. (SB)

__Week 3: Individual Judicial Review__
Frank G. and Diane G., Parents of Disabled Student Anthony G., v. Board of Education of Hyde Park, Central School District

04-4981-CV

2006

Facts: This case involved an appeal from a judgment of the US District Court for the Southern District of New York, which ordered the defendants to reimburse the plaintiffs for tuition and attorney fees. The parents of Anthony G. had sought reimbursement for private school tuition after he was denied a free appropriate public education under IDEA. The school system asserted that the placement in the private school was not appropriate and that IDEA permits reimbursement only where a child has previously received special education and related services.

Issue: Can parents who have chosen to place their child unilaterally in a private school program receive compensation for tuition when the child has not received special education and related services in the public schools?

Holding: Yes, if the public schools denied a student access to a free appropriate public education and the private placement is determined to have conferred educational benefit. The US Court of Appeals for the Second Circuit disagreed with the School District’s arguments and affirmed the decision of the district court.

Rationale: The school district conceded that it had failed to offer a free and appropriate public due to Anthony’s documented need for a small structured classroom setting, with which a School District employee agreed during testimony. The private school placement was determined to have been appropriate because of the small class size, the adaptations that Anthony’s teacher at the private school provided, Anthony’s social and academic progress, and his improved scoring on the Stanford Achievement Test. The court disagreed with the School Board and the decision in __Bd of Educ. V. Tom F.,__ No. 01-6845, 2005 WL 22866, at *3 (S.D.N.Y. January 4, 2005) which asserted that “where a child has //not// previously received special education from a public agency, there is no authority to reimburse the tuition expense arising from a parent’s unilateral placement of the child in private school.” The court stated that they believed that it was “unreasonable to suggest that Anthony’s parents were legally required to engage in such a useless and counterproductive exercise” as enrolling him in a public placement that would not confer educational benefit prior to unilaterally placing him in the private school (p. 26, *19). The court found that Section 1412(a)(10)(C)(ii) of IDEA does not prohibit reimbursement and therefore affirmed the decision of the district court.

Week 4: Individual Judicial Review
Forest Grove School District v. T.A.

05-35641

2008

Facts: This case involves reimbursement for private school tuition for a student who was never identified as having a disability in need of a 504 plan or IEP by his school district in Oregon. The student attended public school from Kindergarten until the spring semester of his junior year of high school. After the student became a chronic marijuana user and engaged in self-destructive behavior, his parents enrolled him in a private residential school. The parents sought reimbursement for the residential school tuition. A hearing officer ruled that T.A. was disabled, eligible for special education, and denied FAPE, thereby concluding that the school district was responsible for the school tuition. An appeal to federal district court reversed the opinion, stating that TA was ineligible for reimbursement under IDEA. The case was then heard by the Ninth Circuit.

Issue: Does a provision in the 1997 IDEA amendment bar private school reimbursement for students who have not previously received special education and related services?

Holding: No, students who have not previously received special education and related services can be eligible for reimbursement.

Rationale: The Ninth Circuit agreed with the US Court of Appeals for the Second Circuit’s reasoning in the case of Frank G. v. Board of Education (2006). In a two to one split decision, the majority stated that a categorical bar would defeat the purposes of IDEA to provide children with disabilities with free and appropriate education. It also agreed with the Second Circuit that a categorical bar would lead to absurd results, such as lengthy times in unfavorable learning situations or students not being identified as having a disability, such as in the present case. Oral arguments were held in the Supreme Court regarding this case on Tuesday, April 28, 2009. The case number is 08-305.