IEE's, Residential Placement, Failure to Provide FAPE Addressed in Plainville Court Decision

In a decision issued March 31, 2012, a United States District Court judge has rejected the appeal of the Plainville, Connecticut board of education from a hearing officer's ruling mandating reimbursement for residential placement at the F.L. Chamberlain School in Massachusetts.  In Plainville Board of Education v. R.N. by Mrs. H., 112 LRP 16721 (D. Conn. 2012), Judge Chatigny deferred to the rulings of the hearing officer on issues of educational policy and her findings of fact in ruling in favor of the parent.  As described in the decision, the case presents a remarkable picture of a student who, as a result of severe emotional disturbance, was unable to benefit from a therapeutic day program and required a residential placement in order to make educational progress, and it also addresses some common legal disputes between parents and school districts on the subject of obtaining evaluations and exploring appropriate placement options.  See if you recognize any of this pattern in your current cases:

Diagnosed in 2nd grade with juvenile onset bi-polar disorder, the student began receiving special education services but was still hospitalized for psychiatric care.  More services were added to the IEP and a therapeutic day program was recommended.  The student was placed at Northwest Village School at Wheeler Clinic, where his behavior improved, but his mother and doctors were concerned that use of closed-door seclusion could be harmful to his condition. He did not make progress on his goals and objectives, but a neuropsychological evaluation supplied by the parent concluded that he had the potential to make significant academic progress. The following school year, he initially made a positive adjustment, but then his behavior deteriorated and he was sent to the emergency room and provided with homebound instruction while his parent explored other placement options.  The district recommended placement at Intensive Education Academy (IEA), and for five months, the student attended there on a shortened day schedule, leaving each day at 11:00 a.m.  Efforts to return him to a full day schedule were unsuccessful, and he was ultimately discharged from the school after striking two staff members and being suspended.  At the last PPT meeting prior to the due process hearing, the school district recommended High Road School and the parent requested residential placement at Chamberlain, supported by the student's treating psychiatrist and other experts.  The student then proceeded to make educational progress (by report of the school) at Chamberlain, attending classes regularly and not requiring seclusion, restraint or hospitalization during residential treatment.

Aside from a somewhat familiar fact scenario, the decision contains some interesting legal discussions.  For example, the school district at one point requested a psychiatric evaluation of the student by its consulting psychiatrist, but the parent refused to consent unless the district provided more detailed information about the type of evaluation that would be conducted and what information was being sought.  The hearing officer and the court both rejected the district's position that it was entitled to evaluate the student and that the parent had unfairly blocked necessary evaluations, finding that the district's failure to provide "exactly what medical or behavioral conditions it sought to discover" and "the methods of evaluation that would be used" failed to allow the parent to provide informed consent to the requested evaluations.  The court went on to say that, while the district has a right to expect consent to conduct initial evaluations and triennial re-evaluations, the district does not have a right to "insist on an ad hoc reevaluation", and since the hearing officer determined that the student did not need to be re-evaluated, this conclusion would not be overturned by the court.

Additionally, the district stated (according to the decision) that it would not consider the evaluation reports provided by the student's treating psychiatrist and other professionals because the evaluations did not meet the district's IEE criteria, which require classroom observation and consultation with school district staff.  However, the hearing officer and the district court judge found that the failure to consider the parent's evaluations was a procedural violation, because the evaluations in question were not district-funded IEE's, but instead were evaluations obtained at parental expense and presented for consideration by the PPT.  As such, those evaluations did not have to comply with the district's IEE criteria.

The court went on to say, however, that it need not reach the issue of whether these two procedural violations resulted in a denial of FAPE to the student, because the IEP was not reasonably calculated to provide educational benefit to the student and therefore, he was denied FAPE in any event.

On the issue of denial of FAPE, the district argued that the hearing officer had overstepped her authority by considering the student's actual progress under each IEP that was offered, rather than whether the IEP was "reasonably calculated" to provide FAPE at the time it was generated.  The court agreed that the Second Circuit Court of Appeals has not yet issued a definitive ruling on the subject of whether this type of "retrospective evidence" may be considered by the court in these cases.  Despite this lack of controlling precedent, the judge nonetheless decided that retrospective evidence "must be appropriately discounted to avoid hindsight bias" but "is relevant and may therefore be evaluated: a failed plan is more consistent with an unreasonably calculated IEP than a reasonably calculated one."  So, in the District of Connecticut, at this point, it appears that whether a student actually makes progress or regresses while being educated under the IEP developed by the district will be considered when determining whether the IEP was reasonably calculated to offer a FAPE.

Lastly, the district attempted to argue that the parent's involvement in the educational decision-making process should lead to the conclusion that the district could not be held responsible for denial of FAPE when it was only doing that which the parent asked.  While agreeing that the parent could not "ask a school district to accede to her wishes and then try to punish it for doing so", the court found that parental involvement only defeats a claim by the parent that their procedural safeguards were violated, and does not excuse the district from providing a substantive FAPE to the student.

The broad range of legal issues decided in this case by the U.S. District Court may yet be reviewed by the Second Circuit Court of Appeals.  Meanwhile, using this case as a guide, districts will do well to make evaluation requests thoughtfully, provide information to parents about what information is sought in the evaluations and types of assessments that will be performed, consider the impact of private evaluation reports whether or not they comply with the district's IEE criteria, and recall that failure to progress educationally in a therapeutic day placement may indicate a need for residential placement through the IEP.

Second Circuit Decision: Failure to Name Specific School Not a Procedural Violation for IEP

In a new decision issued October 9, 2009, T.Y. v. New York City Dept. of Education, 109 LRP 63646 (2d Cir. 2009), the Second Circuit Court of Appeals has ruled that it is not a procedural violation of the Individuals with Disabilities Education Act (IDEA) for the IEP not to name a specific school that is recommended for a child with special education needs.  Departing from the 4th Circuit view on this issue in a case decided in 2007, the 2nd Circuit ruled that the IDEA provision requiring IEP's to include the anticipated location of a child's services does not mean that the IEP must name a specific school, just a general type of educational program.

According to the decision, the child in this case, T.Y., is a child with autism with resulting developmental and language delays.  He received special education services in a preschool program during the 2005-2006 school year, and at the annual review in the spring of 2006, a program was proposed for the 2006-2007 school year including a classroom with a 6:1:1 ratio of students, teachers, and paraprofessional staff.  Related services and a paraprofessional for "crisis management" were also proposed.  The IEP specified that the placement would be in "District 75", the city's special education district, but did not name a school.  A month after the IEP was prepared, the parents received a placement notice from the districts central placement office.  The parents visited the program and rejected it as unsuitable.  The district proposed an alternative location, but the parents rejected that school as well and unilaterally placed the child in a private special education program.  The parents claimed both that the program was substantively inappropriate and that it was procedurally inadequate because it failed to name a school or classroom in the IEP.

Citing US Department of Education commentary on their IDEA regulations that "the location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service", the court concluded that the IDEA reference to a "location" of service does not mean a specific school, but the "general environment of the overall program".

The court emphasized that the holding should not be read to mean that school districts may assign a child to a school that is not able to implement the IEP, but the failure to name a school in the IEP will not be a per se violation of IDEA.  The court also noted that it appeared the parents were seeking "veto power" over the placement decision rather than input, which the IDEA "clearly does not grant them".

Much Ado About Nothing

The Supreme Court ruling in the Forest Grove School District v. T.A. case was released this week.  Maybe it's just me, but I don't see this ruling as changing much of anything in the world of special education disputes, at least as far as Connecticut is concerned.  Essentially, the Supreme Court ruled that 20 U.S.C. 1415(i)(2)(C)(iii) continues to allow courts to award reimbursement of tuition in unilateral placement cases if they determine that the school district failed to provide FAPE, even if the student has not previously received special education services from the school district.  The Supreme Court seemed offended that the school district could evaluate a child, find the child not eligible for services, fail to provide services, and then benefit from that failure by having the courts deny reimbursement for the parent's unilateral private school placement.  Is this really a surprise to anyone?

Yes, those of us who represent school districts had hoped that the Supreme Court might rule in favor of the district, recognizing the public policy concerns that we have about parents who fail to notify the district or request evaluations prior to making a private placement, but those facts were just not presented in this case.  The parents in the Forest Grove case did request evaluations, the school district evaluated the student and found him not eligible and did not provide an IEP.  The arguments from the school district that the public policies of IDEA require a collaborative relationship between school and parents, and development of an appropriate IEP requires constant adjustment to changing circumstances are real, but they are undercut when the district is determined to have erred in failing to find the student eligible for services in the first place.

So how does life change after Forest Grove? In Connecticut, I would argue, not at all.  I am not aware of a single Connecticut hearing officer who has ever denied reimbursement for a unilateral private placement by a parent in a case where the district either failed to evaluate when it should have, or evaluated and erroneously found the child not eligible.  The Supreme Court decision seems consistent with that line of decisions.  The bigger question, it seems to me, is whether the courts and hearing officers will treat differently (as I believe they should) the case where the parents do not refer the child for special education evaluation until AFTER the child is placed and, according to IDEA, the "child find" responsibilities belong to the district where the school is located, rather than the district of residence.