Much Ado About Nothing

Posted on June 27, 2009 by Michelle C. Laubin

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.
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Border Wars

Posted on November 9, 2007 by Michelle C. Laubin
Do you have students placed in out-of-state residential (boarding) schools by parents?  If so, this OSEP guidance letter may be of interest to you, particularly if some of those students are in Massachusetts and the state or the school has previously sent the parents back to you for evaluation if there was a potential special education issue.  In a letter directed to the State Director of Special Education, Letter to Mittnacht, 48 IDELR 194 (OSEP 2007), OSEP Director Alexa Posny indicated that the plan submitted by Massachusetts for compliance with IDEA 2004 may not be in compliance with the federal law.  Specifically, it appears that parents of students placed in Massachusetts residential and boarding schools who have attempted to refer those students for initial special education evaluations may have been told that the local school district will not conduct the evaluation if the student was an out-of-state resident.  Ms. Posny politely pointed out that this may conflict with 34 C.F.R. 300.131(f), which requires the local school district to take responsibility for child find, even if the student is a resident of another state, like Connecticut.

The OSEP letter goes on to say that these parentally-placed private school students from other states should also be counted as special education students within the school district for purposes of calculating the "proportionate share" of IDEA funding that is available to be spent on private school special education students in the district.  For those school districts in Connecticut who have students parentally placed in boarding schools in Massachusetts, the fact that the Massachusetts local school district is getting the IDEA funding for that student (who may be a Connecticut resident) is a very good reason to refer that student to the Massachusetts district both for an initial eligibility evaluation, as well as triennial evaluations and other "service plan" services that the student may need while enrolled at the Massachusetts school.

Keep in mind also, that this principle is equally applicable to states other than Massachusetts, even though Massachusetts was the target of the OSEP criticism here.  Think about those kids sent to boot camp/school in Virginia, wilderness camp/school in Utah, etc.  Given that the local school district for the town where the school is located is going to get the IDEA funding for that student, don't lose too much sleep over sending the student to that district for evaluation and other services.
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