Wednesday, January 15, 2014

Appellate Court Holds That Parents of Special Education Student Are Entitled to Tuition Reimbursement: School's After-the-Fact Promises to Afford Better Services Not Good Enough by Mark Weber

The Illinois Appellate Court issued a noteworthy special education decision on December 31, 2013. Jenna R.P. v. City of Chicago School District No. 299, No. 1-11-2247, 2013 WL 6869027 (Ill. App. Dec. 31, 2013), reversed a trial court decision that had denied a parent reimbursement for a private residential placement. The student had a history of social and emotional difficulties. In March of her first year in high school, the Chicago Public Schools found her eligible for special education with a designation of emotional disturbance and learning disability. Her Individualized Education Program called for a decreased course load and some resource room services, but she racked up many absences and failed five subjects. The district modified her IEP during sophomore year, intensifying the accommodations and assistance; nevertheless the absenteeism continued and she ran away from home the Spring of that year. Her father ultimately located her and placed her in an inpatient psychiatric hospital, then in a wilderness-based residential school in Utah. In June, the father contacted the person responsible for special education services at the public school to arrange a long-term plan to educate the student, but was told that the IEP team could not convene due to the end of the school year. In July, the father sent a ten-day notice to the district advising it of his plan to place his daughter at Elan School in Maine and obtain reimbursement. In late July, the director of due process wrote the father to say the district would not fund the placement. The student stayed there for three school years, ultimately obtaining a Maine high school diploma and admission to several colleges. During the time the student remained at Elan, the district and the father agreed to an additional evaluation, and during her last year at Elan, the school system revised her IEP to offer instructional accommodations, 30 minutes per week of social work consultation, and special education supportive services for 20 percent of the school day, all at a Chicago public school.

In response, the father requested a due process hearing. The hearing officer ruled that the public schools had denied the student free, appropriate public education, relying on overwhelming evidence she needed a small teacher-pupil ratio in a highly structured setting. The officer denied tuition reimbursement, however, pointing out that the student’s problems stemmed from parental management issues and runaway behavior, but arguing principally that the parent failed to place the student in the least restrictive environment, and that the public school had the capacity to place the student in a small, self-contained classroom or a private day school. The state trial court affirmed on the basis of the administrative record.

The appellate court reversed in an opinion by Justice Gordon, holding that the hearing officer made errors of law by relying on what the small, self-contained class the district could have provided, rather than what the school system actually offered in the IEP. The court adopted the view of the Second Circuit in R.E. v. New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), limiting the public school to the IEP and evidence describing what it would provide, but not allowing reliance on services not actually offered by the school system in the IEP. It reasoned that the school system is not allowed to create a defective IEP, let the parent obtain a private

placement, then effectively amend or fix the IEP at hearing. Moreover, the court said the parental placement need not meet the IDEA definition of appropriate education, as long as it provides special education services to meet the child’s unique needs. The court said it was an error of law to focus on whether the private placement was in the least restrictive environment, stressing that the Seventh Circuit in Board of Education v. Illinois State Board of Education, 41 F.3d 1162 (7th Cir. 1994), and other courts have ruled it is improper to hold the parent to the requirement when the situation resulted from the failure of the public schools to provide an alternative. At most, least restrictive environment might be considered only a single factor among others pertaining to reimbursement. The court also rejected an argument that the due process request was filed beyond the statute of limitations, finding the defense was not properly raised in the lower court and noting that there was no evidence the school system provided notice of the two-year limitations period to the parent and that the continuing violation doctrine could apply.

Justice Reyes wrote a partial dissent, contending that the majority paid insufficient attention to the noneducational reasons for the Elan placement and that R.E.’s rule barring evidence of what could have been provided should not apply when the parent did not take full advantage of opportunities to correct the IEP issued before the beginning of the residential placement and did not rely on that IEP, which the dissent contended was the case. The dissent also said the hearing officer did not focus exclusively on least restrictive environment and that the decision could be sustained on the ground that the placement was not a reasonable parental response to the student’s educational needs.

The opinion is remarkable for its thoroughness and astute use of precedent. It illustrates the persuasiveness of the Second Circuit’s approach in R.E.: How is a parent to know whether to make a unilateral placement or even whether to file for due process if ultimately the school district will be able to rely on services that could have been offered but were never committed to writing in the IEP? It also shows the influence of the reasoning of a number of federal courts that it is unfair to burden parents with the obligation to place in the least restrictive environment when they cannot compel the public schools to create an integrated program for the child but can only opt for schooling in a private setting. The decision remains subject to discretionary review by the Illinois Supreme Court.

 The opinion is available here.

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