Hardison v. Board of Educ. of Oneonta City Sch. Dist., Nos. 13-1594/13-1843 (2d Cir. Dec. 3, 2014)
Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that a federal district court erred in failing to give greater deference to a state review officer’s (SRO) determination that parents were not entitled to reimbursement under the Individuals with Disabilities Education Act (IDEA) for unilaterally placing their child, who is emotionally disabled, in a private school because the parents failed to produce evidence sufficient to establish that the placement was appropriate. Because the panel deferred to the SRO’s finding that the record lacked sufficient detail to establish that the private school chosen by the parents was an appropriate placement for the student, it denied reimbursement to them.
Facts/Issues: A.N.H., who exhibited some emotional issues through elementary and middle school in Oneonata School District (OSD), progressed successfully in a regular education program. However, when she reached high school her academic performance declined. A.N.H. began exhibiting problematic behaviors that led to a tentative diagnosis of bipolar disorder. Her guidance counselor and her mother requested that the school engage in an evaluation of A.N.H. designed to gather information on why she was having difficulty at school. The school conducted an evaluation and identified numerous reasons for A.N.H.’s difficulties in school. The evaluation did not result in the school placing A.N.H. on an individualized education plan (IEP).
After it became clear that A.N.H. would fail nearly all of her classes that year, her parents removed her from school, sending her to live with her grandmother until the end of June 2007. A.N.H. failed all but two of her 2006–2007 classes and received 25 discipline reports for unexcused absences from class, tardiness, and disruptive class behavior that year. She returned to OSD in the fall of 2007, but continued to have a number of mental health issues that resulted in her being hospitalized, being sent to a rehabilitation facility, and then being placed in placed in Bugbee, which is a specialized program operated by OSD.
A.N.H.’s parents requested and received a Committee on Special Education (CSE) assessment of A.N.H., which included an evaluation by the school psychologist. The school psychologist’s report noted that Mrs. Hardison (A.N.H’s mother) “believes that [A.N.H.] should be able to pass and do fairly well but she lacks the desire” and that, “[u]ntil [A.N.H.] is willing to do her work . . . outside tutoring is the best option.” The Hardisons seemed to think that if A.N.H. was returned to Oneonta High School full-time, her prior patterns would resume. The psychologist opined that, despite A.N.H. receiving average scores on the intelligence and performance tests, “outside mental health factors appear[ed] to be causing a significant disruption in [A.N.H.’s] life within school” and that “[t]he CSE will need to determine to what extent [A.N.H.’s] mental health issues are impacting her educationally.”
OSD convened a CSE meeting in January 2008, which A.N.H. and her parents attended. Much of the meeting was spent discussing what supports could be put into place for A.N.H., but no official individualized educational plan (IEP) was created for her. A.N.H.’s return to the high school was brief and she was returned to the Bugbee where mental health issues continued. Her parents subsequently had A.N.H. hospitalized.
The parents did not make another referral to the CSE, nor did OSD convene the CSE on its own. Instead, A.N.H.’s mother sent an email to A.N.H.’s guidance counselor, informing him that they were working on enrolling A.N.H. at the Family Foundation School (“Family Foundation”). OSD answered questions for the parents and provided a copy of A.N.H.’s transcript to Family Foundation. The parents did not inform the District during this exchange that they would be seeking tuition reimbursement. A.N.H. initially enrolled in Family Foundation for only a few days, returning to Bugbee because she tested positive for pregnancy and had been asked to leave.
Shortly thereafter, A.N.H. was hospitalized again and diagnosed with “Major Depressive Disorder.” The paperwork from this stay, which indicated that she had “[i]nadequate supports,” but did not state that A.N.H. should be referred to the CSE, was not provided to OSD. In July 2008, A.N.H. miscarried and remained in care for approximately two weeks. Afterwards, she was re-enrolled in Family Foundation. Appellants again did not inform OSD that they would be seeking tuition reimbursement.
Family Foundation is not a New York State-approved special education school. Family Foundation’s program is designed for students in need of therapeutic intervention. The overall academic structure is designed to provide support, including evening teacher availability and tutoring by more advanced students. A.N.H. did not receive regular services from a licensed psychologist while at Family Foundation, although she did meet regularly with her family counselor as part of her “family group.” During the period covered by this litigation, the Hardisons paid the tuition at Family Foundation. No bills for A.N.H.’s schooling were sent directly to the OSD.
In August 2008, A.N.H.’s father informed the District that A.N.H was enrolled in Family Foundation and requested “some tuition assistance.” OSD refused, indicating that it could not provide reimbursement because A.N.H. was not classified as disabled and Family Foundation was not on the list of approved special education schools. In response, the parents indicated that they would seek legal counsel. OSD did not reconvene the CSE at that time. A.N.H. remained enrolled at Family Foundation.
In October 2008, on the advice of legal services staff, the parents made a referral to the Hancock Central School District (HCSD), which is located in the same area as Family Foundation, but they did not provide a copy of the referral letter to the District. This referral was made pursuant to New York Education Law § 3602-c, which calls for the public provision of special education services to students enrolled in non-public schools. In January 2009, in response to the parents’ request, HCSD’s psychologist evaluated A.N.H.
HCSD’s CSE—which was composed of the A.N.H.’s parents, a parent advocate employed by the parents’ legal counsel, two HCSD employees, and three Family Foundation staff members, determined that A.N.H. was classifiable as a student with an “Emotional Disturbance.” HCSD created, but never implemented, an Individualized Education Service Plan (“IESP”), which is functionally identical to an IEP, for A.N.H. Although the IESP did not specifically call for placement in a residential facility, it acknowledged that A.N.H. had been placed at Family Foundation and several of the identified “goals” in the HCSD IEP seemed to be directed toward services provided there. None of these services was provided to A.N.H. by HCSD.
In February 2009, the parents filed a due process complaint against OSD, arguing, among other things, that A.N.H. had been denied a FAPE. The parents requested that A.N.H. be classified as disabled, that she be provided with appropriate services, and that they be reimbursed for the tuition cost of Family Foundation. As part of a resolution session, A.N.H. was again referred to the OSD’s CSE.
In April 2009, OSD held a CSE meeting and classified A.N.H. as having an “[e]motional disturbance” based on her history of depression and self-destructive behavior. According to the OSD’s Director of Special Education, it was appropriate to change A.N.H.’s classification because OSD now had information it lacked when it originally declined to classify her in 2008. They developed an IEP. The IEP recommended that A.N.H. attend a day treatment program. The CSE did not assign A.N.H. to a day treatment program at that time.
The parents were provided with a list of approved residential programs, including facilities for girls A.N.H.’s age who suffered from emotional disturbances, to review prior to the next CSE meeting. OSD did not provide a specific referral to any of these facilities, which, according to the parents, limited their ability to learn about the offered programs. In June 2009, the District’s CSE reconvened but again put off assigning A.N.H. a specific placement so that the parents could investigate additional options.
The parents informed OSD that the placements they had investigated between meetings were inappropriate for A.N.H., rejecting one because it did not treat eating disorders despite the fact that A.N.H. had not been diagnosed with an eating disorder. OSD continued to reject placing A.N.H. at Family Foundation, however, on the grounds that Family Foundation did not have structured special education programs, that not all of its teachers were certified teachers, and that it was not on the list of schools approved by the New York State Commissioner of Education.
A second IEP was created at the August 5 meeting. It repeated the same list of needs identified in the April 2009 IEP, but added that “[a]s the result of a thorough assessment of [A.N.H.’s] strengths and needs in relation to the identified education disability, the CSE has determined that removal from general education is necessary at the identified levels in order to provide the specialized instruction necessary to demonstrate academic achievement.” The IEP indicated that a residential placement was appropriate, but it did not specify a school. It permitted placement at any of the “[a]pproved in-State private schools.” Neither during this meeting, nor in the week that followed, did the parents inform OSD that they planned to reject the residential placements offered or that they would seek reimbursement for A.N.H.’s continued placement at Family Foundation.
After a due process hearing , the impartial hearing officer’s (IHO) decision found that OSD had denied A.N.H. a FAPE for the 2008–2009 and 2009–2010 academic years. The IHO ordered OSD to pay A.N.H.’s tuition through January 31, 2010, and to find a suitable placement for A.N.H. for the balance of the 2009–2010 school year. Specifically, the IHO found that, in 2008–2009 the District failed to provide A.N.H. a FAPE because the school psychologist failed to evaluate thoroughly A.N.H.’s mental health issues; the CSE failed to develop information relative to A.N.H.’s educational history; and, despite receiving information from the parents that A.N.H was “collapsing into depression,” OSD did not reconvene the CSE. The IHO concluded that A.N.H.’s placement at Family Foundation was appropriate, and, despite the parents’ failure to notify the district of the placement and intention to seek reimbursement prior to enrolling A.N.H. at Family Foundation, there was no equitable impediment to tuition reimbursement.
Regarding the 2009–2010 school year, the IHO determined that A.N.H. was again denied a FAPE because the IEP developed for her neither placed her in a school nor provided referrals to any of the private residential programs on the Commissioner’s approved placement list. The IHO continued to find placement at Family Foundation appropriate and—again excusing the parents’ failure to provide express notice to the District—held that the equities did not fully bar reimbursement because of the extent of collaboration between the parents and OSD when trying to find an acceptable placement for A.N.H.
OSD appealed the decision to a state review officer (SRO). The SRO overturned the bulk of the IHO’s decision, finding that the district had not deprived A.N.H. of a FAPE through May 1, 2009; that the parents had failed to demonstrate that Family Foundation was an appropriate placement; and that equitable considerations did not support the parents’ reimbursement claim. In reaching its decision, the SRO reviewed the compiled record before the IHO and additional briefing from the parents and the District. Regarding the 2008–2009 school year, the SRO concluded that as of the January 31, 2008 CSE meeting, A.N.H. failed to meet one or more of the criteria for a student with an emotional disturbance and thus was not denied a FAPE on account of her not being classified at that time.
The SRO also determined, however, that as of May 2009, the CSE had an obligation to recommend a placement for A.N.H. and failed to do so, thus denying A.N.H. a FAPE for the balance of the 2008–2009 school year. Although the SRO found that the District denied A.N.H. a FAPE, the SRO also determined that the record lacked sufficient information regarding how Family Foundation met A.N.H.’s unique educational needs. The SRO determined that the parents had not demonstrated that A.N.H. was appropriately placed at Family Foundation. The SRO further held that equitable considerations did not support the parents’ reimbursement claim. With respect to the 2009–2010 school year, the SRO similarly ruled that OSD denied A.N.H. a FAPE but that the parents had not met their burden of proving that Family Foundation met A.N.H.’s needs and that equitable considerations did not weigh in favor of reimbursement.
The parents challenged the SRO’s decision in federal district court. The district court did not review any additional information that had not been submitted to the IHO or SRO. That is, the record before the district court was the same record that was before the SRO. It reversed, in part, the SRO’s decision, and ordered OSD to reimburse the parents for May 1, 2009 to May 31, 2009, and for the 2009–2010 school year.
Unlike the SRO, the district court found that Family Foundation was an appropriate placement that provided A.N.H. with ample therapeutic support, which contributed to her improved academic performance. The court departed from the SRO’s analysis. It further concluded that the equities favored reimbursement for the period of May 1, 2009 to May 31, 2009, and for the 2009–2010 school year. OSD appealed from the district court’s decision, and the parents cross-appealed from the district court’s agreement with the SRO that the District provided A.N.H. a FAPE from January 2008 to April 2009.
Ruling/Rationale: The Second Circuit panel, rejecting the parents’ cross-appeal, reversed the district court’s decision as to its determination that partial summary judgment was appropriate for the parents. The lynchpin of the panel’s ruling was on its deference to the SRO’s determination that the parents did not meet their obligation to demonstrate the appropriateness of A.N.H.’s placement, and, therefore, it concluded that the parents could not recover under IDEA for any portion of the time A.N.H. was placed at Family Foundation.
The panel began its analysis by indicating that “[w]hen an IHO and SRO reach conflicting conclusions, we defer to the final decision of the state authorities, that is, the SRO’s decision.” It emphasized that the district court should have afforded more deference to the SRO’s conclusions because its review was based entirely on the same evidence as that before the SRO. Citing Second Circuit precedent it stated that “[i]t is not for the federal court to choose between the views of conflicting experts on such questions.”
Based on those principles, the panel held that “the SRO’s determination in this case is sufficiently reasoned and supported by the record to merit deference” in regard to the finding that record contained insufficient information to conclude that Family Foundation’s programs were appropriate for A.N.H.’s specific educational needs. It stated:
The determination made by the SRO here, that more particular information was required to reach a particular decision, is a function of the specialized knowledge and expertise possessed in greater degree by state educational policymakers than by the courts. … It is precisely because we recognize that state educational authorities possess greater expertise in drawing conclusions from educational proceedings that it is clearly established in this Circuit that “deference to ‘administrative proceedings is particularly warranted where, as here, the district court’s decision was based solely on the administrative record.
The panel concluded, based on its independent review of the administrative record, “that the SRO’s conclusion was sufficiently supported by the record to merit deference.” It found the SRO’s determination that “the hearing record lacks sufficient information regarding how Family Foundation provided educational instruction specially designed to meet the unique needs of the student,” was reasoned and supported by the record, and entitled to deference. As a result, the panel determined that the district court should not have disturbed the SRO’s conclusion. It said, “Because we defer to the SRO’s finding that the record lacked sufficient detail to establish that Family Foundation was an appropriate placement for A.N.H., and that finding requires a denial of reimbursement to the [parents], we do not reach the additional issues raised by the parties on appeal.”
Hardison v. Board of Educ. of Oneonta City Sch. Dist., Nos. 13-1594/13-1843 (2d Cir. Dec. 3, 2014)
[Editor's Note: In October 2014, Legal Clips summarized a 2-1 decision by a Ninth Circuit panel in M.M. v. Lafayette Sch. Dist. holding that a California school district’s failure to comply with the IDEA's procedural requirement to provide parents with educational testing data deprived the parents of the opportunity to meaningfully participate in the creation of their son’s individualized education program (IEP) thereby denying the student a free appropriate public education (FAPE) under the IDEA.
The dissenting opinion took issue with the majority’s view of the RTI model utilized by LSD to measure achievement levels of all students in the school. The judge emphasized that RTI was not a mechanism used by LSD to identify students in need of special education. Despite that fact, the judge pointed out that the majority held that LSD’s failure to provide these test results to C.M.’s parents resulted in a violation of the IDEA. She contended that the ALJ had issued a detailed decision, which should have been given deference, in which a clear distinction was made “between use of the RTI as a means to assign students to their respective classrooms and use of the RTI as an assessment tool to determine eligibility for special education services.” Judge Rawlinson said¸ “Rather than deferring to the ALJ’s considered resolution of this issue, the majority embarks upon a de novo review of the record to reach a conclusion contrary to that of the ALJ and at odds with the record.”]