Doe v. East Lyme Bd. Of Educ., Nos. 14-1261/14-1638 (2d Cir. Jun. 26, 2015)
Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled:
School district did not violate the Individuals with Disabilities Education Act’s (IDEA) procedural requirement that parents have the right to participate in the development of an individual educational plan (IEP), even though the 2009-10 IEP was issued after the last IEP meeting the parent was present at;
The 2009-10 IEP was substantively adequate under IDEA;
The school district’s failure to offer an IEP for 2010-11 and subsequent years because the parent had removed the student from public school and unilaterally placed the student in private school constituted a denial of a free appropriate public education (FAPE) as required by IDEA;
However, the parent was not entitled to reimbursement for the cost of the unilateral private school place based on the district’s failure to provide a FAPE because the private school placement was not appropriate under the IDEA;
The services provided in the 2008-09 IEP were the services the district was required to continue to provide under the stay-put provision of IDEA;
The fact that the district provided a FAPE does not relieve it of liability under stay-put provision;
The district is liable for reimbursement of those special education services listed in the February 2009 amendment of the 2008-09 IEP;
The parent was not subject to IDEA’s exhaustion of administrative remedies in regard to the stay-put claim;
The stay-put obligation was triggered at the time the parent initiated the administrative due process proceedings, not when the parties reached an impasse; and
Reimbursement for the special education services is made on the basis of the full value of those services, not the parent’s out-of-pocket expenses.
Facts/Issues: John Doe, who suffers from autism, attended public school in East Lyme Public School District (ELSD) through the end of the 2006. Doe’s parent then placed him in a private school. Doe’s IEP provided that the parent would be responsible for the private school tuition, but ELSD would fund the cost of the related special education services. Following a dispute over the Doe’s proposed 2009-10 IEP, which placed him in public school, the parent continued his enrollment at private school ELSD, and continued to privately obtain some, but not all, of the related services previously funded by ELSD. The school district refused to pay for the private school or any related services on the ground that it ceased to be responsible for the Student once he was enrolled outside ELSD.
The 2008-09 IEP provided that Doe would receive the following special education services at ELSD’s expense: Orton-Gillingham reading instruction (5 hours/week), speech therapy (2.5 hours/week), and occupational/physical therapy (1.5 hours/week). In February 2009, the parties amended the IEP to increase speech therapy to 3 hours per week.
When ELSD officials and the parent reached an impasse regarding the proposed 2009-10 IEP, Doe continued to attend the private school during the 2009-10 school year, and was regularly pulled out of the classroom to receive special education services (which the private school did not offer) from private providers. The parent also arranged for Doe to receive some instruction over the summer. The parent absorbed all of these educational expenses.
In August 2010, the parent advised ELSD that unless she received a satisfactory IEP, she would continue Doe’s enrollment at the private school for 2010-11, and demanded reimbursement of her expenses. ELSD refused, on the ground that the Doe’s private school enrollment terminated the school district’s obligations under the IDEA.
In September 2010, the parent filed an administrative due process complaint alleging ELSD had failed to provide DOE with a FAPE and violated various procedural requirements under the IDEA and Connecticut law. The parent sought reimbursement for the private school tuition and the costs of the related services.
The hearing officer (HO) ruled in favor of ELSD. The HO determined that ELSD had offered a FAPE during the relevant school years, and that the lack of special education services at the private school made it an inappropriate placement under IDEA. The HO denied the parent’s request for reimbursement.
The parent filed an appeal in federal district court. The parties cross-moved for summary judgment on the basis of the administrative record. The district court ruled that as to 2009-10, ELSD had offered Doe a FAPE. While it found ELSD had failed to propose an IEP for 2010-2011 (and the subsequent school years) as required by IDEA, the parent was not entitled to relief because the private school was an inappropriate placement.
On the other hand, the court held that ELSD violated IDEA’s stay-put provision because it refused to continue funding the related services described in the amended 2008-2009 IEP once the parties reached an impasse. The court held that ELSD’s obligation to fund those services triggered as of June 17, 2009 (when impasse was reached), and ordered the school district to reimburse the parent for related services she funded since that date. However, it limited the amount of reimbursement to the parent’s out-of-pocket expenses.
Both the parent and ELSD appealed the district court’s decision. ELSD argued Doe’s private school enrollment terminated its obligations under the IDEA altogether, that it prevailed on the FAPE claim, and that liability for a stay-put violation is conditional on the Parent’s prevailing on the FAPE claim. The parent argued that ELSD failed to provide a FAPE, and that the private school was an appropriate placement.
Ruling/Rationale: The Second Circuit panel affirmed in part, vacated in part the district court’s decision, and remanded the case to the district court for proceedings consistent with the panel’s ruling. It began its analysis with the parent’s denial of FAPE claim based the inadequacy of the 2009-10 IEP, ELSD’s failure to issue IEPs for later school years, and the appropriateness under IDEA of the private school placement.
The panel stated that the premise of the assertion that the 2009-10 IEP was inadequate was that the parent was deprived of the right to participate in the development of the 2009-2010 IEP, because it was issued after the last meeting at which she was present. It rejected that premise pointing out that while IDEA guarantees the parent’s right of “participation . . . throughout the development of the IEP,” under IDEA “the duty to issue an IEP remains with the educational agency.” The panel concluded: “The right of participation encompasses the right to offer input and to have that input considered; it does not entail a right to be physically present throughout the agency’s own decisional process.” As a result, it found there was no procedural violation that amounted top denial of FAPE.
The panel also rejected the parent’s substantive challenge to the adequacy of the 2009-10 IEP. Giving substantial deference to the HO’s findings, it agreed with the HO’s conclusion that IEP’s combination of placement and services was substantively adequate. the panel, therefore, held that the 2009-10 IEP had provided Doe with a FAPE. As to ELSD’s failure to provide an IEP each of the subsequent years, it agreed that the failure constituted a denial of FAPE. However, the panel agreed with the district court that the parent was not entitled to relief because Doe’s private school placement was inappropriate. It, therefore, affirmed the district court’s decision in favor of ELSD on the FAPE claim.
Turning to the stay-put claim, the panel agreed with the district court that the stay-put placement was the one described in the 2008-09 IEP, as amended in February 2009, making that IEP the most recently implemented and agreed upon by the parties. It concluded that ELSD had clearly violated IDEA’s stay-put provision and its arguments to the contrary were meritless.
The panel, noting that ELSD contended that the parent should not be able to obtain reimbursement for the unilateral private school, stressed that the parent was not seeking reimbursement for the private school tuition, but for the costs of related services. It also rejected ELSD’s argument that the related services it agreed to fund did not form part of the Student’s educational placement for 2008-2009. It pointed out that the Second Circuit had applied the stay-put provision to payments for related services.
In addition, the panel dismissed ELSD’s contention that the 2008-2009 IEP cannot be a stay-put placement because the parties intended it to be a temporary arrangement. It emphasized that the stay-put obligation is rooted in statute, not contract.
Finally, the panel rejected ELSD’s argument that it cannot be held liable for a stay-put violation if it in fact provided a FAPE. It stated that the “stay-put provision means that an educational agency is required to maintain the status quo placement even if the child would otherwise have no substantive right to it.” The panel found ELSD’s reliance on the U.S. Supreme Court’s holding in Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985), misplaced because in the panel’s words:
Burlington stands for an unremarkable proposition: when a parent rejects a stay-put placement by unilaterally placing the child elsewhere, retroactive reimbursement for the unilateral placement is available, if at all, only through a FAPE claim.
We are not confronted with a Burlington scenario. Under the 2008-2009 IEP, the Student was to attend Solomon at parental expense and to receive related services at the expense of the Board. While paying for the related services herself, the Parent maintained that continuous placement during the pendency of this litigation. And far from declining the protection of stay-put, the Parent actively invoked it. At the June 2009 IEP Team meeting, she repeatedly demanded that the Board continue to provide stay-put placement.
As a result, it affirmed the district court’s grant of summary judgment in favor of the parent on the stay-put claim.
Lastly, the panel tackled the issue of the relief awarded by the district court. For purposes of determining what related services were subject to reimbursement under the stay-put provision, it concluded it was those services listed in and agreed upon in the February 2009 amendment to the 2008-09 IEP. It concluded that the parent was not subject to IDEA’s exhaustion of administrative remedies in regard to the stay-put claim.
The panel also found the stay-put obligation was triggered at the time the parent initiated the administrative due process proceedings, not when the parties reached an impasse. In addition, it determined that reimbursement for the special education services is made on the basis of the full value of those services, not the parent’s out-of-pocket expenses.
Doe v. East Lyme Bd. Of Educ., Nos. 14-1261/14-1638 (2d Cir. Jun. 26, 2015)
[Editor’s Note: In August 2014, Legal Clips summarized a decision by a three-judge panel for the U.S. Court of Appeals for the Sixth Circuit in N.W. v. Boone Cnty. Bd. of Educ. vacating the federal district court’s decision granting tuition reimbursement to the parents of a disabled student for their unilateral private school placement, even though the district court found that the parents had failed to prove that the school district denied the student a free appropriate public education (FAPE). The panel concluded that the lower court erred in holding that the Individuals with Disabilities Education Act’s (IDEA) “stay-put” provision applies in those situations where the parents withdraw the disabled student from the placement approved by the district, and then unilaterally place the student in private school without the district’s approval. Based on U.S. Department of Education (ED) regulations, the panel found that a valid “then current placement” for purposes of the stay-put provision requires an educational setting that the school district has approved at some point. As a result, a unilateral placement could not serve as a “then current placement” under the IDEA.]