Federal district court rules parents are entitled to reimbursement for unilateral placement at private school even though school offered FAPE, applying “stay put” to the unilateral placement
N.W. v. Poe, No. 13-07 (E.D. Ky. Nov. 4, 2013)
Abstract: A federal district court in Kentucky has ruled that a school district that provided a disabled student with a free appropriate public education under the Individuals with Disabilities Education Act was nonetheless responsible for reimbursing the parents for tuition at the private school where the parents had unilaterally placed the student. The court found that the private school was the proper “stay put” placement under IDEA, and that the district was therefore liable for tuition reimbursement.
Facts/Issues: At the time N.W. was three, he was enrolled in the Boone County Schools (BCS) in Kentucky. BCS determined that N.W. was eligible for special education services under the IDEA, and placed him at St. Rita School for the Deaf in Ohio. In June 2010, when N.W. was 6, his parents unilaterally enrolled him in Applied Behavioral Sciences (ABS) school, also in Ohio. BCS convened an Admissions and Release Committee (ARC) meeting on October 21, 2010 to discuss N.W.’s placement options. Although the parents planned to transition N.W. back to public school, they believed ABS was the best placement at the time.
The parties agreed to a mediated settlement involving tuition, transportation, and attorneys fees’ reimbursement and N.W.’s transition back to the district. The parties agreed to hold an ARC meeting on or before April 15, 2011 to discuss N.W.’s transition back to public school and that a board certified behavioral analyst would lead the transition team.
The spring ARC meeting did not take place until June 1, 2011. As well, BCS’s board certified behavioral analyst did not attend that ARC meeting. Even though BCS expressed its readiness to proceed with the transition plan, the parties to agreed to reconvene at a later date to allow the behavioral analyst to attend. A follow-up ARC meeting was held in July, where the behavioral analyst presented a transition plan under which N.W.’s placement would be the New Haven Elementary School, a BCS school. N.W.’s parents raised concerns about the plan, but they did not object to it. The parties agreed to meet on August 25, 2011 to discuss dates on which to begin N.W.’s transition back to public school.
At the August 25, 2011 ARC meeting, BCS’ behavioral analyst presented a detailed transition plan. The parents, however, claimed that the plan was not specific enough and ended the meeting. BCS sent letters to the parents and their counsel requesting further ARC meetings. At the end of October the parents requested a due process hearing. The hearing was delayed until March 2012 while the parties engaged in settlement negotiations.
The hearing officer (HO) ruled that BCS had not denied N.W a FAPE and that the ARC team membership complied with the IDEA even though the behavioral analyst was not present at the initial meeting on June 1. Specifically, the HO found that the behavioral analyst was not a statutorily required member and, even if she was, the parents had failed to prove her absence at one ARC meeting caused any actual harm. The HO also found that BCS’s transition plan did not deny N.W. a FAPE because the failure to provide such a plan is a procedural error and N.W. provided no evidence that BCS’s plan resulted in a denial of educational benefits. The HO ordered the parties to continue working on a transition plan similar to that proposed by BCS at the August 25, 2011 ARC meeting.
However, the HO concluded that ABS was the “stay-put” placement under IDEA and, as a result, ordered BCS to reimburse the parents for transportation and tuition through end of the 2012 summer session at ABS.
Both parties appealed the decision to the Exceptional Children’s Appeal Board (ECAB). The ECAB affirmed the HO’s conclusion that BCS had offered N.W. a FAPE. More specifically, the ECAB held that New Haven was an appropriate placement for N.W. , BCS’ transition plan was adequate in all aspects, and BCS’s ARC team was composed of the required individuals. Additionally, the ECAB reversed the HO’s “stay-put” order, and held that N.W. was not entitled to compensatory education, tuition reimbursement, transportation costs, or attorney’s fees. The ECAB ruled that ABS was not the “stay put” placement because the district had never consented to that placement.
N.W.’s parents then filed an appeal in federal district court.
Ruling/Rationale: The district court granted in part and denied in part BCS’s motion for summary judgment on the administrative record. The court upheld the ECAB’s rulings as to the district’s offering of FAPE, the proposed transition plan, the ARC membership, the placement decision, and the continuum of placement options. However, it reversed the ECAB’s ruling on “stay-put” and reinstated the HO’s decision that the parents were entitled to reimbursement.
N.W. argued that BCS failed to develop and implement an appropriate IEP because the proposed transition plan was not appropriate. The court responded that the IDEA does not require a transition plan when a student is moving from one school to another, only when the student is transitioning from school to post-school activities. Further, N.W.’s argument at most presents a procedural claim, which fails because N.W. did not show that it resulted in any substantive harm or denial of educational benefits. Even if the transition plan was inadequate, there was sufficient time to address any shortcomings in the plan because N.W. never actually transitioned to the school.
The district court found that that failure to include a required member on the ARC was a procedural error that required substantive harm to be actionable. Assuming without deciding that the behavioral analyst was a required member, the court found that no substantive harm resulted from her absence at the initial ARC meeting.
The court ruled that BCS’s proposed placement was appropriate. The parents were unable provide any evidence that the public school environment chosen by BCS was not reasonably calculated to provide N.W. with educational benefits. N.W.s expert witness admitted that she had no knowledge about New Haven’s classrooms and ABS’s owner admitted that she could no offer an opinion about N.W.s placement at New Haven. The court rejected the parents’ argument that the students in the classroom were less verbally proficient than N.W. because that argument was based solely on the mother’s opinion and disputed by the classroom teacher, citing a Sixth Circuit decision that a parent’s opinion alone is insufficient to prove a FAPE violation.
Despite finding that BCS had offered N.W. a free appropriate public education, the court ordered the district to reimburse the parents for the tuition and costs associated with their unilateral placement of N.W. at ABS. The court sided with the Hearing Officer’s conclusion that ABS was the appropriate “stay put” placement, reversing the ECAB’s ruling on the “stay put” issue. Finding that ABS was the “stay put” placement, the court ordered BCS to pay for N.W.’s tuition at ABS through the date of the court’s decision. The court’s rationale was that “N.W.’s operative placement under which he was actually receiving instruction at the time the dispute arose was ABS,” despite the fact that that placement was arrived at unilaterally by the parents without the school district’s assent.
Interestingly, the court had earlier in its decision bolstered its conclusion that BCS’s transition plan complied with the IDEA with this quote from Park Hill School District v. Dass, 655 F.3d 762, 767-768 (8th Cir. 2011): “IDEA was not intended to fund private school tuition for children of parents who have not first given the public school a good faith opportunity to met its obligations.”
N.W. v. Poe, No. 13-07 (E.D. Ky. Nov. 4, 2013)
[Editor's Note: The court's rationale for ordering tuition reimbursement--a parent's unilateral placement equals stay put equals reimbursement even though the district offered a FAPE-- will likely cause school districts to face increased litigation and huge tuition costs.
Boone County Schools is appealing this decision.
The Council of School Attorneys has created the COSA IDEA Re-authorization Working Group, comprising approximately 30 school attorneys from across the nation. The group is preparing recommendations to inform NSBA's advocacy to Congress on needed revisions to the IDEA. The issue of school district responsibility for unilateral placements is one key area the working group is addressing.
In May 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) in D.P. v. Council Rock Sch. Dist. holding that a Pennsylvania parent, who unilaterally placed a special education student in a private school, was not entitled to tuition reimbursement on the basis that the school district failed to update the student’s individualized education plan after the student was privately placed. The panel held that because the parent never requested that the student be reevaluated, or informed the school district that the parent intended to re-enroll the student in public school, the school district had no duty under the IDEA to update the student’s IEP and no responsibility for tuition reimbursement.]