IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 21, 2009
No. 08-10604 Charles R. Fulbruge III
Clerk
RICHARDSON INDEPENDENT SCHOOL DISTRICT
Plaintiff - Appellant-Cross-Appellee
v.
MICHAEL Z; CAROLYN Z, as next friends of Leah Z, a minor child
Defendants - Appellees-Cross-Appellants
Appeals from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In this case arising under the Individuals with Disabilities Education Act
(“IDEA”), Richardson Independent School District (“RISD” or the “District”)
appeals the district court’s judgment in favor of Appellees Michael Z. and
Carolyn Z. as next friends of their daughter Leah Z. Specifically, the district
court determined that RISD failed to provide Leah with a free appropriate public
education as required under IDEA, and that RISD was therefore required to
reimburse the parents for certain costs associated with Leah’s placement in a
private residential facility. The district court also awarded the parents
attorneys’ fees and costs, granting total relief in the amount of $91,482.60. For
the following reasons, we vacate and remand.
No. 08-10604
I
Leah Z., a minor child at all relevant times, was diagnosed with attention
deficit disorder, oppositional defiant disorder, bipolar disorder, autism,
separation anxiety disorder, and pervasive developmental disorder. After
experiencing emotional and behavioral difficulties at numerous private schools,
Leah entered RISD for fifth grade in the fall of 1999. Leah’s various diagnoses
qualified her for special education and related services from RISD. Under
IDEA, RISD was obligated to provide Leah with an education tailored to her
specific needs through an individualized education program (“IEP”). In Texas,
the committee responsible for preparing Leah’s IEP was an Admission, Review,
and Dismissal Committee (“ARD Committee” or “Committee”).
In seventh grade, Leah entered Westwood Junior High School where she
was placed in a Behavior Adjustment (“BA”) class. An ARD Committee meeting
report indicates that in October 2002, during Leah’s eighth-grade year, she was
writing at a second- to third-grade level, reading at a third-grade level, and
performing math at a sixth-grade level.1 Leah’s behavioral and academic
difficulties increased in eighth grade and she experienced significant regression
over the summer prior to ninth grade. When Leah began ninth grade at
Westwood Junior High School, the ARD Committee met to revise her IEP.2
Nonetheless, Leah’s academic and behavioral difficulties escalated. In the fall
she began leaving class without permission almost daily. Leah arrived at school
1
These grade level assessments came from Leah’s results on the Texas State Developed
Alternative Assessment, a test designed to determine special education students’ academic
capabilities in relation to “mainstream” grade levels.
2
The resultant IEP included goals of improving Leah's reading comprehension skills
to a high third-grade level and her math skills to a fifth-grade level. Strategies to promote
Leah's progress included using frequent reward breaks but limiting her time outside the
classroom. Specifically, Leah was required to be supervised by school staff at all times and
to remain in the classroom unless she had permission to leave. The IEP included remedial
methods such as keeping her classroom door closed and using "physical proximity" to prevent
her from exiting without permission.
2
No. 08-10604
late, took lengthy breaks of up to two hours at a time, and left early. In
November, Leah ran away from school and was eventually caught by the school
police officer. At her mother’s request, she was issued a citation for leaving
school grounds. On a recommendation from Leah’s psychiatrist, RISD educated
Leah in a “homebound” setting for four days prior to the winter break.
After winter break, Leah returned to Westwood and was placed in a
different BA class. Though the transition was initially smooth, by mid-January
Leah was again arriving late, leaving early, and wandering outside the
classroom without permission. Numerous incidents occurred, including Leah
evading school officers, overturning furniture, insulting teachers, using profane
language, and disrupting testing. In evaluating the conflicting evidence of how
the school reacted to Leah’s frequent absences from class, the district court
concluded that sometimes RISD employees supervised Leah during her absences
and sometimes they did not.
In February, it was discovered that during unsupervised absences from
class Leah was engaging in sexual activities with other students in the
bathroom. Her psychiatrist recommended that Leah remain home until an
alternative placement could be found, and RISD agreed. In March, Leah was
transferred to Richardson High School (“RHS”) and placed in a BA class. Since
the teacher of this class was on maternity leave, RISD hired a long-term
substitute, who was not certified to teach in Texas, to supervise Leah. RISD
offered little assistance to the substitute. For example, she was not given Leah’s
IEP, and no one explained to her that Leah’s major problem was fleeing from
class. It appears that most of the information the substitute had about Leah
came from Leah’s mother. Leah remained at RHS for only two weeks, during
which the pattern of disruptive behavior and refusal to work continued. Later
in March, an incident occurred at home where Leah scratched her father and
caused him to bleed. Her psychiatrist recommended Leah’s admission to a
3
No. 08-10604
psychiatric facility, and Leah’s parents eventually placed her at the Texas
NeuroRehab Center (“TNRC”). As of April 5, 2004, Leah’s parents had
unilaterally removed her from RISD without notice to the District.
At TNRC, Leah attended the on-site University Charter School (“UCS”),
a public charter school. UCS developed an IEP for Leah and provided her with
physical therapy, occupational therapy, and counseling. Her adverse behavior
continued and included numerous instances of groping staff members and other
patients, attempting to remove other patients’ clothing, refusing to follow
directions or attend class, and engaging in self-mutilation. She was frequently
physically restrained or placed in locked confinement. Leah’s doctor, Dr. Mehta,
considered Leah one of her most difficult patients. Dr. Mehta attributed Leah’s
behavioral problems to three factors: 1) Leah testing her limits in the restrictive
TNRC placement; 2) the frequent changes made in her medications in an
attempt to find the correct medication for her disorders; and 3) rapid and cyclical
changes in her mood and behavior caused by her bipolar disorder. Dr. Mehta
testified that Leah’s behavior did not significantly improve until shortly after
Leah started taking the medication Clozaril. The doctor attributed Leah’s
improvement to a combination of TNRC’s structured environment, the
medication, and intensive counseling and therapy sessions. Leah was
discharged from TNRC on November 12, 2004, with the recommendation that
she attend a special education class with one-on-one supervision to prevent
future behavioral problems related to lack of supervision.
Meanwhile, in June 2004 Leah’s parents requested an ARD Committee
meeting to request Leah’s placement at TNRC. After reviewing Leah’s
assessments from TNRC, the ARD Committee found that RISD remained
capable of providing her with a free appropriate public education and denied the
request for private residential placement. The Committee developed an updated
IEP (the “June 2004 IEP”) that attempted to account for Leah’s sexual and
4
No. 08-10604
aggressive behavior. Leah’s parents argued to the Committee that the new IEP
failed to adequately account for her behavioral or academic regression. The
district court found that the June 2004 IEP was substantially similar to Leah’s
previous IEPs.
In July 2004, Leah’s parents filed a request for an administrative due
process hearing alleging that RISD failed to provide Leah with a free
appropriate public education and requesting reimbursement for her placement
at TNRC. The Hearing Officer found in favor of the parents and awarded them
$56,000. The district court agreed, and awarded the parents $54,714.40 as
reimbursement for the room and board, comprehensive therapy services, nursing
services, and neurological diagnostics. The district court also awarded Leah’s
parents $36,768.20 in attorneys’ fees and costs. RISD now appeals.
II
We review de novo the district court’s decision that the local school’s IEP
was inappropriate and that the alternative placement was appropriate under
IDEA, as a mixed question of law and fact. See Teague Indep. Sch. Dist. v. Todd
L., 999 F.2d 127, 131 (5th Cir. 1993) (citing Christopher M. v. Corpus Christi
Indep. Sch. Dist., 933 F.2d 1285, 1289 (5th Cir.1991)). The district court’s
findings of “underlying fact” are reviewed for clear error. Id. Whether the child
obtained any benefit from special education services is a finding of underlying
fact. Id.
III
This appeal involves an interpretation and application of IDEA, 20 U.S.C.
§§ 1400–1487.3 After the events in this case, Congress amended and
reauthorized IDEA, see Individuals with Disabilities Education Improvement
3
Prior versions of the Act include the Education of the Handicapped Act, Pub. L. 91-
230, 84 Stat. 175 (1970) (“EHA”), and the Education for All Handicapped Children Act of 1975,
Pub. L. 94-142, 89 Stat. 773 (“EAHCA”).
5
No. 08-10604
Act of 2004, Pub. L. 108-446, 118 Stat. 2647 (codified as amended at 20 U.S.C.
§§ 1400–1482), and the Department of Education revised IDEA’s implementing
regulations, see Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg.
46540 (Aug. 14, 2006) (codified as amended at 34 C.F.R. §§ 300 & 301). For the
present case, we must look to the code and regulations as they existed at the
time of the events of this case. See Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia
F., 503 F.3d 378, 382 n.4 (5th Cir. 2007). That is, we must look to the 1997
version of IDEA (which was in effect through 2004) and its implementing
regulations. See Individuals with Disabilities Education Act Amendments of
1997, Pub. L. 105-17, 111 Stat. 37 (codified at 20 U.S.C. §§ 1400–1487).
IDEA requires states to provide all children with a “free appropriate public
education” in order to receive federal funding. 20 U.S.C. § 1412(a)(1)(A); Forest
Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2487-88 (2009). To ensure that all
children receive a meaningful opportunity to benefit from public education, the
education of children with disabilities must be tailored to the unique needs of the
handicapped child by means of an IEP. 20 U.S.C. § 1414(d). IDEA mandates
that disabled children be educated among non-disabled children, to the fullest
extent possible, in the least restrictive environment. See 20 U.S.C. § 1412(5); Bd.
of Educ. v. Rowley, 458 U.S. 176, 202 (1982). However, IDEA does not entitle a
disabled child to a program that maximizes the child’s potential. See Cypress-
Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997).
Instead, IDEA guarantees a “basic floor” of opportunity, “specifically designed
to meet the child’s unique needs, supported by services that will permit him to
benefit from the instruction.” Id. at 247-48; see also Rowley, 458 U.S. at 200.
Still, the educational benefit “cannot be a mere modicum or de minimis; rather,
an IEP must be likely to produce progress, not regression or trivial educational
6
No. 08-10604
advancement.” Michael F., 118 F.3d at 248 (quotation marks and citation
omitted).
Here, the hearing officer and district court found that RISD failed to
provide Leah with a free appropriate public education. Specifically, they found
that Leah’s parents had shown that the June 2004 IEP was inappropriate and
that Leah’s placement at TNRC was appropriate. Consequently, both the
hearing officer and district court determined that Leah’s parents were entitled
to reimbursement from the District. RISD now challenges these decisions.4
A
Under IDEA, when a party aggrieved by an administrative decision brings
a civil action, the district court may “grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(B)(iii). The Supreme Court has interpreted
the term “appropriate” to mean “‘appropriate’ in light of the purpose of the Act.”
Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 369 (1985).
When parents unilaterally remove their child from a public school,
reimbursement for the expenses of private schooling may be an appropriate form
of relief in some situations:
If the parents of a child with a disability, who previously received
special education and related services under the authority of a
public agency, enroll the child in a private elementary or secondary
school without the consent of or referral by the public agency, a
court or a hearing officer may require the agency to reimburse the
4
As an initial matter, Leah’s parents ask us to clarify which party bears the burden of
proof in a district court’s review of an administrative decision under IDEA. At the
administrative level, it is clear that the party challenging the IEP bears the burden of proof.
See Schaffer v. Weast, 546 U.S. 49, 62 (2005). We have never distinguished the administrative
level from the district court level for purposes of determining who bears the burden of proof.
Rather, we have applied the same general rule that the burden of proof lies with the party
challenging the IEP regardless of the stage of the proceeding. See Michael F., 118 F.3d at 252
(citing Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 462 (5th Cir. 1995); Teague, 999
F.2d at 131; and Christopher M., 933 F.2d at 1289). Accordingly, we hold that at the district
court level, as at the administrative level, the party challenging the IEP bears the burden of
showing that the IEP and the resulting placement are inappropriate under IDEA.
7
No. 08-10604
parents for the cost of that enrollment if the court or hearing officer
finds that the agency had not made a free appropriate public
education available to the child in a timely manner prior to that
enrollment.
20 U.S.C. § 1412(10)(C)(ii); see also Burlington, 471 U.S. at 369-71; Michael F.,
118 F.3d at 248. To receive reimbursement, a disabled child’s parents must
prove that (1) an IEP calling for placement in a public school was inappropriate
under IDEA, and (2) the private placement was proper under the Act. Michael
F., 118 F.3d at 248 (citing Burlington, 471 U.S. at 370); see also Florence County
Sch. Dist. Four v. Shannon Carter, 510 U.S. 7, 15 (1993). We will consider each
of these issues in turn.
1
Our review of the adequacy of an IEP is limited to two questions: First,
has the state complied with the procedural requirements of IDEA? Rowley, 458
U.S. at 206. Second, “is the [IEP] developed through the Act’s procedures
reasonably calculated to enable the child to receive educational benefits?” Id. at
206-07. Here, Leah’s parents have not challenged RISD’s procedural compliance
with IDEA, so our inquiry focuses only on whether the June 2004 IEP was
reasonably calculated to enable Leah to receive educational benefits.5
In Michael F., we articulated four factors relevant to the determination of
whether an IEP is reasonably calculated to provide meaningful educational
benefits under IDEA:
(1) the program is individualized on the basis of the student’s
assessment and performance;
(2) the program is administered in the least restrictive
environment;
5
The hearing officer and district court determined that the June 2004 IEP was
inadequate. Though the hearing officer appears to have also addressed whether RISD
provided Leah with a free appropriate public education during the 2003-2004 school year,
since the district court addressed only whether Leah’s June 2004 IEP was adequate, our
inquiry is limited to that issue.
8
No. 08-10604
(3) the services are provided in a coordinated and collaborative
manner by the key “stakeholders”; and
(4) positive academic and non-academic benefits are
demonstrated.
118 F.3d at 253. We have never specified precisely how these factors must be
weighed. In practice, we have treated the Michael F. factors as indicators of
when an IEP meets the requirements of IDEA, but we have not held that district
courts are required to consider them or to weigh them in any particular way.
See, e.g., Houston Indep. Sch. Dist. v. VP, 556 F.3d 459, 467 (5th Cir. 2009);
Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 810 (5th Cir. 2003); Houston
Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000).
Here, the hearing officer and district court analyzed the June 2004 IEP
under the Michael F. framework. However, the method by which the district
court weighed the factors is somewhat unclear. The district court made no
express findings regarding the first factor, but did acknowledge that the IEP
addressed Leah’s specific behavioral difficulties and academic goals. Leah’s
parents did not contest the second factor, so the district court did not address
whether the IEP was administered in the least restrictive environment. The
third factor was briefly referenced, with the court stating that there was “reason
to doubt” that Leah’s IEP was implemented in a truly collaborative fashion.
The district court appeared to afford dispositive weight to the fourth
factor, namely whether Leah demonstrated positive academic and non-academic
benefits. No direct evidence exists of Leah’s actual progress under the June
2004 IEP, since she was already at TNRC when it was created. Thus, the
district court evaluated the fourth factor exclusively in terms of Leah’s progress
under previous IEPs, which it found were “substantially similar to [the June
2004 IEP] with several exceptions.” The district court found that under the
previous IEPs Leah had shown a “consistent pattern of regress,” and that “the
9
No. 08-10604
evidence is quite sparse regarding meaningful progress either academically or
non-academically for Leah during the 2003-2004 school year.” Overall, the
district court’s conclusion that the June 2004 IEP was inadequate is based on its
finding that RISD was consistently unable to resolve the primary causes of
Leah’s academic failure—her refusal to remain in the classroom and her
destructive conduct when she was there. Though acknowledging that the IEPs
contained measures to address these issues, the district court found the
measures insufficient to resolve the problem because they had repeatedly failed
in the past. Accordingly, the district court concluded that the June 2004 IEP
failed to provide a meaningful educational benefit to Leah because it was not
reasonably calculated to prevent Leah from fleeing or likely to produce different
results than previous IEPs.
Though the district court might have explained why it afforded more
weight to the fourth Michael F. factor than the others, we cannot conclude that
the district court legally erred in its application of the Michael F. test. As
explained above, we have not held that district courts must apply the four
factors in any particular way. Our cases state only that these factors are
“indicators” of an IEP’s appropriateness, see, e.g., VP, 556 F.3d at 467; Adam J.,
328 F.3d at 810; Bobby R., 200 F.3d at 347, intended to guide a district court in
the fact-intensive inquiry of evaluating whether an IEP provided an educational
benefit. Therefore, the district court did not legally err by affording more or less
weight to particular Michael F. factors.
RISD argues that the district court erred by requiring it to show that Leah
made actual educational progress in order to find that she was provided with a
free appropriate public education. Undoubtedly, IDEA does not require a school
district to maximize a disabled child’s potential. See Rowley, 458 U.S. at 198.
Rather, it requires “that the education to which access is provided be sufficient
to confer some educational benefit upon the handicapped child.” Id. at 200; see
10
No. 08-10604
also Bobby R., 200 F.3d at 349-50. The district court, however, did not base its
ruling on a failure to maximize Leah’s potential; it concluded that the June 2004
IEP was insufficient to confer any educational benefit upon Leah at all. This
conclusion was not based exclusively on Leah’s failure to progress. Rather, it
was the stark pattern of regression over a significant period of time under
similar IEPs, combined with RISD’s documented inability to keep Leah in the
classroom, that indicated that any IEP substantially similar to the previous ones
was doomed to fail. Therefore, the district court did not commit legal error by
viewing Leah’s history of regression as relevant to its determination that the
June 2004 IEP was insufficient to provide any educational benefit.
Moreover, the district court did not err in its factual finding that Leah
received minimal educational benefits in the 2003-2004 school year. A district
court’s determination of whether a child received educational benefits is
reviewed only for clear error. See Bobby R., 200 F.3d at 347. The record
supports the district court’s conclusion that, absent a few isolated instances of
arguable academic success, overall Leah failed to make meaningful academic
progress in the 2003-2004 school year. Accordingly, we hold that the district
court did not err in its finding that the June 2004 IEP calling for placement in
a public school was inappropriate under IDEA.
2
The second showing that parents must make in order to receive
reimbursement for the unilateral placement of their child in a private facility is
that the private placement was proper under IDEA. See Carter, 510 U.S. at 15;
Michael F., 118 F.3d at 248. The district court held that TNRC was a
public/private “hybrid” facility that should be assessed under the Supreme
Court’s framework in Florence County School District Four v. Shannon Carter,
and adopted the Third Circuit’s “inextricably intertwined” test in order to
determine that Leah’s placement at TNRC was proper under IDEA. RISD
11
No. 08-10604
argues that the district court erred by applying Carter, and that since Leah’s
placement was improper under IDEA no reimbursement is warranted. As the
foregoing analysis indicates, we conclude that the district court did not err by
applying Carter, but we vacate and remand because the district court applied the
incorrect test for determining when a private placement is proper under IDEA.
a
RISD argues that the district court erred by failing to determine whether
Leah’s treatment at TNRC strictly complied with IDEA, instead determining
that reimbursement was permitted if her treatment was “otherwise proper.” See
Carter, 510 U.S. at 15. When parents unilaterally remove their child from public
school and place them in a private facility, they do so at their own financial risk.
See Burlington, 471 U.S. at 373-74; Carter, 510 U.S. at 15. That is, the parents
bear the risk that a hearing officer or court might later determine either that the
child’s existing IEP was appropriate, or that the particular facility or program
into which the parents placed their child was inappropriate; in either case, a
school district need not pay for the residential placement. But when a parent
unilaterally withdraws their child from public school and enrolls them in a
private school, the parent is entitled to reimbursement if a hearing officer or
court later determines that the private school education was “otherwise proper
under IDEA,” even if it did not meet each specific IDEA requirement. See
Carter, 510 U.S. at 9. In other words, parents are not barred from
reimbursement because the private school did not meet the precise IDEA
definition of a free appropriate public education, because IDEA requirements
“cannot be read as applying to parental placements.” Id. at 13.
Under Carter, then, it is clear that if TNRC were simply a private school,
reimbursement would be permitted if Leah’s education there was “otherwise
proper” under IDEA. However, Carter does not directly answer the question
presented here of whether a facility with both private and public components
12
No. 08-10604
must meet all IDEA requirements in order for the district court to allow
reimbursement. Attempting to resolve this issue, the district court held that a
Leah’s placement at TNRC could be judged by the Carter standard. The district
court determined that since Leah was enrolled at TNRC via unilateral parental
placement after RISD failed to provide her with a free appropriate public
education, Carter’s pronouncement that IDEA “cannot be read as applying to
parental placements” allowed reimbursement if her education was “otherwise
proper” under IDEA.
We agree with the district court. Though the facts in Carter involved a
private school, the holding was not contingent on the fact that the facility was
purely private. Rather, the Court was clearly focused on maintaining the right
established in Burlington: namely, that IDEA empowers a court “‘to order school
authorities to reimburse parents for their expenditures on private special
education for a child if the court ultimately determines that such placement,
rather than a proposed IEP, is proper under the Act.’” Id. at 12 (quoting
Burlington, 471 U.S. at 369). Carter appreciated the situation facing a parent
contemplating a unilateral withdrawal and placement after a public school
proves incapable of educating their child. Such a parent faces the difficult choice
of either “‘go[ing] along with the [school district’s] IEP to the detriment of their
child if it turns out to be inappropriate or pay[ing] for what they consider to be
the appropriate placement.’” Id. (quoting Burlington, 471 U.S. at 370). For
parents willing to risk the latter option, Congress authorized a court to award
retroactive reimbursement for a program later found to be appropriate. Id. at
12, 15.
However, such parents “have no way of knowing at the time they select a
private school whether the school meets state [or other relevant] standards.”
Carter, 510 U.S. at 14. As the Carter Court noted, many IDEA requirements
13
No. 08-10604
require cooperation and extensive involvement by the state educational agency,6
and “such cooperation is unlikely in cases where the school officials disagree
with the need for the private placement.” Id. at 15. Thus, the Carter Court
required only that a parental placement be “proper” for parents to receive
reimbursement. Id. at 12-13. In essence, Carter found that it would eradicate
the Burlington right to unilateral withdrawal if reimbursement were only
allowed when private facilities meet every IDEA requirement, particularly those
requirements mandating state cooperation, when the entire reason for the
withdrawal is the parents’ dissatisfaction with the state’s efforts to educate their
child.
This logic extends to Leah’s placement at TNRC. Leah’s parents decided
to remove her from public school and place her at TNRC at their own expense,
after they determined that RISD was unable to provide her with a free
appropriate public education. Under Burlington and Carter, they did so at their
own financial risk. Id. at 15. Also as in Carter, Leah’s parents received no
assistance from RISD in their effort to place Leah at a private facility, and they
had no way of knowing whether TNRC met each procedural requirement
mandated by IDEA. We therefore should not expect that Leah’s placement at
TNRC would “be the exact proper placement required under the Act.” Alamo
6
Section 1401(8) defines “free appropriate public education” as special education and
related services that—
(A) have been provided at public expense, under public supervision and direction, and without
charge,
(B) meet the standards of the State educational agency,
(C) include an appropriate preschool, elementary, or secondary school education in the State
involved, and
(D) are provided in conformity with the individualized education program[.]
Section 1401(11) defines an IEP, and states that it must be developed, reviewed, and
revised in accordance with § 1414(d). Under § 1414(d), the IEP must be developed by an “IEP
Team,” which must include a representative of the local educational agency. The local
educational agency is required to play an integral role throughout the periodic IEP review and
revision process.
14
No. 08-10604
Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 (5th Cir.
1986).
RISD argues, however, that because UCS is a public charter school, Leah’s
placement should be analyzed under the normal test for any public school, i.e.,
the four-factor Michael F. test. They assert that Carter dealt only with parental
placements at private schools. This argument is unconvincing. As an initial
matter, RISD’s argument assumes that under Carter, a unilateral parental
placement at a public charter school would have to comply totally with IDEA in
order for the court to allow reimbursement. Of course, Carter does not support
this contention and would in fact never reach this question. The Carter rule only
applies to situations where parents request reimbursement for the cost of their
child’s education and related services, and no such costs would accrue if a parent
simply moved their child to another public school. Further, RISD argues for a
rule that would require Leah’s education at UCS to be evaluated separately from
her treatment at TNRC (since it is clear under Carter that private facilities are
judged under the “otherwise proper” standard). The record indicates , however,
that Leah’s treatment at TNRC occurred in an integrated fashion with
collaboration between TNRC and UCS. As the district court noted, “an integral
part of her education involved her residential placement at TNRC, over which
the UCS could exercise no actual control[.]” Therefore, it would be impossible
for the district court to evaluate Leah’s placement under IDEA without running
afoul of Carter, because any review of her placement would require the court to
evaluate an educational plan with both public and private components.
Accordingly, we hold that the district court did not err by determining that
reimbursement was permitted if Leah’s placement was “otherwise proper” under
IDEA.7
7
However, we note that our ruling is limited to the particular facts of this case, where
it is clear that Leah was treated in a collaborative fashion at a hybrid public/private facility.
15
No. 08-10604
b
RISD also argues that the district court erred by determining that Leah’s
placement was proper under IDEA. See Michael F., 118 F.3d at 248 (holding
that reimbursement may be ordered only if the parents establish that the
private school placement was proper under the Act). IDEA authorizes
reimbursement for private residential placements in certain situations. See
T.A., 129 S. Ct. at 2490-91; Burlington, 471 U.S. at 370. A free appropriate
public education includes special education and related services that have been
provided at public expense. 20 U.S.C. § 1401(8)(A). “Special education” is
defined as “specially designed instruction, at no cost to parents, to meet the
unique needs of a child with a disability, including instruction conducted in the
classroom, in the home, in hospitals and institutions, and in other settings; and
instruction in physical education.” Id. § 1401(25). “Related services” are
transportation, and such developmental, corrective, and other
supportive services (including speech-language pathology and
audiology services, psychological services, physical and occupational
therapy, recreation, including therapeutic recreation, social work
services, counseling services, including rehabilitation counseling,
orientation and mobility services, and medical services, except that
such medical services shall be for diagnostic and evaluation
purposes only) as may be required to assist a child with a disability
to benefit from special education . . . .
Id. § 1401(22). Department of Education regulations provide that “[i]f placement
in a public or private residential program is necessary to provide special
education and related services to a child with a disability, the program,
including non-medical care and room and board, must be at no cost to the
parents of the child.” 34 C.F.R. § 300.302. Thus, it is clear that, in some
We do not foreclose the possibility that the facts of future hybrid-type situations would
indicate the appropriateness of evaluating a public education component under IDEA.
16
No. 08-10604
situations, a public school district must reimburse a disabled child’s parents for
the costs of a private residential program.
The Fifth Circuit has not yet articulated a test for determining when, in
the face of an inappropriate IEP, a private residential placement is proper under
the Act. Among circuits that have considered the issue two apparently distinct
approaches have emerged, as articulated in the Third Circuit’s decision in
Kruelle v. New Castle County Sch. Dist, 642 F.2d 687 (3d Cir. 1981), and the
Seventh Circuit’s decision in Dale M. v. Bd. of Educ. of Bradley-Bourbonnais
High Sch. Dist. No. 307, 237 F.3d 813, 817 (7th Cir. 2001). Though the tests
adopted by each circuit contain overlapping language and arguable degrees of
semantic similarity, one major characteristic separates the Third and Seventh
Circuit’s approaches. Specifically, the Third Circuit’s test focuses on whether a
child’s medical, social, or emotional problems are “inextricably intertwined” with
the learning process, while the Seventh Circuit’s test focuses on whether the
private residential placement is “primarily educational.”
In Kruelle, the Third Circuit enunciated the following test for determining
when a private residential placement is appropriate under IDEA:
[a]nalysis must focus . . . on whether full-time placement may be
considered necessary for educational purposes, or whether the
residential placement is a response to medical, social or emotional
problems that are segregable from the learning process.
642 F.2d at 693. Under the Third Circuit’s test, if a court cannot segregate a
child’s medical, social, or emotional problems from the learning process, the
school district must reimburse the parents for the private residential placement.8
8
Thereafter, each circuit to consider the issue has cited Kruelle. However, the degree
to which each court has adopted and applied the inextricably intertwined test varies
significantly. Several circuits seem to have fully adopted the test. See, e.g., Burke County Bd.
of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990); Tenn. Dep’t of Mental Health & Mental
Retardation v. Paul B., 88 F.3d 1466, 1471 (6th Cir. 1996); Clovis Unified Sch. Dist. v. Cal.
Office of Admin. Hearings, 903 F.2d 635, 643 (9th Cir. 1990) (per curiam); McKenzie v. Smith,
17
No. 08-10604
In Dale M., the Seventh Circuit enunciated a different test for determining
when private residential placement is required under IDEA:
[t]he essential distinction is between services primarily oriented
toward enabling a disabled child to obtain an education and services
oriented more toward enabling the child to engage in
noneducational activities. The former are ‘related services’ within
the meaning of the statute, the latter not.
237 F.3d at 817. Accordingly, the proper inquiry in the Seventh Circuit is
whether the private residential placement is “primarily educational.” Though
the court cited Kruelle favorably, the Dale M. test differs markedly from the
Kruelle test in that the focus is not on whether the child’s medical, social, or
emotional problems are segregable from the learning process, but rather on
whether the services provided at the residential facility are geared primarily
toward helping the child obtain an education. Under this standard, courts have
drawn a distinction between those services that are primarily for treating a
child’s medical or behavioral problems and those services that are primarily for
enabling educational instruction. See, e.g., id. at 817; People v. D.D., 212 Ill. 2d
410, 429-30 (Ill. 2004).
Undoubtedly, it is difficult to conceive of a disabled child, particularly a
child with mental disabilities, whose medical, social, or emotional problems
would have no effect on the child’s ability to learn and would therefore be
segregable from the learning process. Some courts applying the Kruelle test
appear to have recognized the breadth of the “inextricably intertwined” inquiry
and have attempted to limit its application. See, e.g., Clovis, 903 F.3d at 643 (“a
771 F.2d 1527, 1534 (D.C. Cir. 1985).
Another group of circuits have enunciated tests similar to Kruelle, but with notable
semantic differences. In these circuits, the inextricably intertwined inquiry does not appear
to be the primary focus. See, e.g., Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983);
Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997); Ind. Sch. Dist. No. 284 v.
A.C., 258 F.3d 769, 774 (8th Cir. 2001); Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853,
857-58 (11th Cir. 1988).
18
No. 08-10604
child who must be maintained on kidney dialysis certainly cannot physically
benefit from education to the extent that such services are necessary to keep him
alive, but . . . it is not the responsibility of the school district to provide such
maintenance care”). The Clovis court also denied reimbursement for
psychological services. Id. at 645-47. However, if such services affected the
child’s ability to physically or psychologically receive an education, they were not
segregable from the learning process and under Kruelle’s broad language would
have been reimbursable.
Certainly, IDEA has a broad conception of education and seeks to ensure
that all disabled children are provided, at public expense, with a meaningful
opportunity to learn. See 20 U.S.C. § 1400(d)(1)(A); T.A., 129 S. Ct. at 2490-91.
However, IDEA does not require school districts to pay for private residential
placements that are not essential for a disabled child to receive an education.
See 34 C.F.R. § 300.302 (limiting a school district’s reimbursement obligation to
private school services that are “necessary . . . to provide education”). By
requiring courts to undertake the Solomonic task of determining when a child’s
medical, social, and emotional problems are segregable from education, Kruelle
expands school district liability beyond that required by IDEA. Put another way,
it is not difficult to imagine a case where a disabled child’s various difficulties
may impossible for a court to segregate, but the child is still capable of receiving
an educational benefit without private residential placement. Kruelle does not
account for this situation.
Considering this, we adopt the following test:
In order for a residential placement to be appropriate under IDEA,
the placement must be 1) essential in order for the disabled child
to receive a meaningful educational benefit, and 2) primarily
oriented toward enabling the child to obtain an education.
19
No. 08-10604
Unlike Kruelle, this test does not make the reimbursement determination
contingent on a court’s ability to conduct the arguably impossible task of
segregating a child’s medical, social, emotional, and educational problems. The
first prong of our test requires a court to find that the placement is essential for
the child to receive a meaningful educational benefit. In other words, if a child
is able to receive an educational benefit without the residential placement, even
if the placement is helpful to a child’s education, the school is not required to pay
for it under IDEA. This formulation of the test aligns with the goal of IDEA: to
enable a disabled child to receive a meaningful educational benefit. Moreover,
this prong is directly tied to IDEA’s implementing regulations, which state that
“[i]f placement in a public or private residential program is necessary to provide
special education and related services to a child with a disability, the program,
including non-medical care and room and board, must be at no cost to the
parents of the child.” 34 C.F.R. § 300.302.
Our second prong asks the question posed in Dale M.: Was the residential
placement primarily oriented toward enabling the child to obtain an education?
IDEA, though broad in scope, does not require school districts to bear the costs
of private residential services that are primarily aimed at treating a child’s
medical difficulties or enabling the child to participate in non-educational
activities. IDEA ensures that all disabled children receive a meaningful
education, but it was not intended to shift the costs of treating a child’s disability
to the public school district. This is made clear in IDEA’s definition of “related
services,” which limit reimbursable medical services to those “for diagnostic and
evaluation purposes only.” 20 U.S.C. § 1401(22); see Irving Ind. Sch. Dist. v.
Tatro, 468 U.S. 883, 892-93 (1984) (noting that the medical services exclusion
was “designed to spare schools from an obligation to provide a service that might
well prove unduly expensive and beyond the range of their competence.”);
Teague, 999 F.2d at 132 (denying reimbursement for private residential
20
No. 08-10604
treatment and observing that the private facility’s “focus was on behavior
management” and that the private facility “devoted only the same or a little
more time to Todd’s educational programming than did the [public] school.”).
Unlike the first prong of our test, which asks whether the private
placement was appropriate in general by determining whether it was essential
in order for the child to obtain a meaningful educational benefit, the second
prong focuses on appropriateness at a more specific level, asking whether the
particular treatments that the private facility provided were primarily oriented
towards enabling the child to receive a meaningful educational benefit. As the
Seventh Circuit observed in Dale M., the “primarily oriented” test is another way
of determining whether the child’s “problems . . . are primarily educational.” See
Dale M., 237 F.3d at 817. Thus, a court reviews the purpose of the private
placement as a proxy for understanding the nature of the child’s problems, along
the way to determining whether the private placement was appropriate. In Dale
M., the court held that the child’s problems were not primarily educational, as
evidenced by the treatment he received at the private placement. Though the
child had “the intelligence to perform well as a student” he suffered from a “lack
of socialization,” and the purpose of the private treatment—keeping the student
out of jail—confirmed this characterization of his problems. Id. Similarly, here
we would expect Leah’s treatment at TNRC to have been primarily oriented
towards educational improvement, if indeed her problems were primarily
educational in nature.
The second prong of our test is necessarily a fact-intensive inquiry. A
court should consider the extent to which the services provided by the residential
placement fall within the IDEA’s definition of “related services.” This “related
services” analysis should inform other factors a court may consider in
determining whether the placement is primarily oriented toward enabling a
child to obtain an education. Such factors include, but are not limited to:
21
No. 08-10604
whether the child was placed at the facility for educational reasons and whether
the child’s progress at the facility is primarily judged by educational
achievement. If, upon analysis of the services as a whole, the court determines
that the residential placement is primarily oriented toward enabling the child
to obtain an education, the court must then examine each constituent part of the
placement to weed out inappropriate treatments from the appropriate (and
therefore reimburseable) ones. In other words, a finding that a particular
private placement is appropriate under IDEA does not mean that all treatments
received there are per se reimburseable; rather, reimbursement is permitted only
for treatments that are related services as defined by the IDEA at 20 U.S.C. §
1401(22).
Therefore, we hold that the district court erred by adopting the Kruelle
inextricably intertwined test. Applying our new test, it appears that the district
court made the factual finding that residential placement was essential for Leah
to receive a meaningful educational benefit. Specifically, the district court
concluded that “Leah could achieve no academic progress short of residential
placement.” The record supports the district court’s conclusion, and we therefore
conclude that the first prong of our test has been met. However, the district
court has not made any factual findings regarding the second prong, namely
whether Leah’s treatment at TNRC was primarily oriented toward, i.e. primarily
designed for and directed to, enabling her to receive a meaningful educational
benefit. Accordingly, we find that the district court erred by not considering this
issue. Our remand, therefore, is limited to the question of whether the second
prong of our new test has been satisfied. Specifically, on remand the district
court should review the facts and determine whether Leah’s treatment at TNRC
was primarily oriented toward enabling her to receive a meaningful educational
benefit.
22
No. 08-10604
B
RISD argues that even if Leah’s parents are entitled to reimbursement,
their failure to provide the District with adequate notice precludes any award.
20 U.S.C. § 1412(a)(10)(C)(iii) provides conditions under which a district court
“may” reduce the amount of reimbursement for a private placement, including
where parents do not notify the school district of their intention to reject the
school district’s IEP and place their child in a private facility. It is undisputed
that Leah’s parents did not inform RISD of their intentions when they removed
Leah on April 5, 2004. Both the hearing officer and district court found that
RISD had actual notice by June 2, 2004, the date on which Leah’s parents
contacted the District to discuss residential placement. Consequently, both the
hearing officer and district court awarded reimbursement only for the costs
incurred after June 2, 2004.
The District contends, however, that this post-June 2, 2004 award was
erroneous, and that the failure to notify RISD prior to Leah’s withdrawal should
bar all recovery. This argument is without merit. Section 1412(a)(10)(C)(iii)
provides that a district court “may” reduce a reimbursement award, giving the
district court broad discretion to determine reimbursement. Accordingly, the
district court did not abuse its discretion by awarding reimbursement despite
the lack of notice.
C
Finally, RISD argues that Leah’s parents are not entitled to attorneys’
fees, and that the district court erred in awarding relief for services rendered
prior to August 19, 2004, as well as for services rendered after August 19, 2004
that exceeded what Leah’s IEP required. 9 Because we have vacated and
9
RISD’s amicus also suggests that ordering reimbursement in the present case violates
the Spending Clause, as there is no clear notice in IDEA that a school district will have to pay
for “primarily medical services.” The Supreme Court recently dismissed a similar Spending
23
No. 08-10604
remanded the district court’s order granting reimbursement, a determination of
these issues is premature at this time.
IV
In their cross-appeal, Leah’s parents argue that the district court failed to
address their request for prejudgment interest. They ask us to remand for
consideration of this issue. However, we conclude that the district court denied
their request by not granting prejudgment interest. Since Leah’s parents make
no argument and cite no authority for the proposition that they could or should
recover interest under IDEA, we find that they have waived this argument. See
Jason D.W., 158 F.3d at 212 (finding that an argument that the district court
abused its discretion by failing to award interest under IDEA was waived for
failure to present arguments or authority to support the position).
V
Because the district court erred in finding that the private residential
placement was appropriate without considering whether the placement was
primarily oriented toward enabling the child to obtain a meaningful educational
Clause argument in Forest Grove Sch. Dist. v. T.A.. There, the Court held that the fact that
IDEA does not unambiguously state all conditions attached to a state’s acceptance of funds
does not necessarily violate the Spending Clause:
In accepting IDEA funding, States expressly agree to provide a free appropriate
public education to all children with disabilities. See § 1412(a)(1)(A). An order
awarding reimbursement of private-education costs when a school district fails
to provide a FAPE merely requires the district ‘to belatedly pay expenses that
it should have paid all along.’ Burlington, 471 U.S. at 370-71. And States have
in any event been on notice . . . that IDEA authorizes courts to order
reimbursement of costs of private special-education services in appropriate
circumstances.
129 S. Ct. at 2495. Moreover, IDEA requires school districts to reimburse the costs of
medical, behavioral, or other related services that are necessary to enable a disabled child to
receive a meaningful educational benefit. See, e.g., Burlington, 471 U.S. at 370; 20 U.S.C.
§ 1401(8), (22), (25); 34 C.F.R. § 300.302. Accordingly, this argument has no merit.
24
No. 08-10604
benefit, we VACATE the district court’s order granting reimbursement and
REMAND for proceedings consistent with this opinion.
25
No. 08-10604
PRADO, Circuit Judge, specially concurring.
I concur in nearly all of the court’s opinion. I write separately only to note
that I do not interpret our two-part test for the propriety of a residential
placement as departing from that of the other circuits that have addressed this
issue. As I read Kruelle v. New Castle County School District and its progeny,1
our two-part test formalizes the practice of our sister circuits.
Our test first asks whether the residential placement is essential for the
child to receive a meaningful educational benefit. This, to me, is the Kruelle
standard. Though linguistically obtuse, Kruelle essentially asks a
straightforward question: Does the child, because of her disability, require a
residential placement to obtain the meaningful educational benefit to which she
is entitled? By requiring that the placement be essential, our first prong asks
the same question and closely tracks the better enunciations of the Kruelle
standard.2 As I see it, then, today’s opinion joins our fellow circuits in adopting
the general Kruelle standard.
Our test also asks whether the particular residential placement in
question is primarily oriented toward enabling the child to obtain an education.
This is a necessary limitation on Kruelle’s potentially expansive scope, as Kruelle
asks only whether the placement is necessary. Even when a child requires a
1
642 F.2d 687 (3d Cir. 1981); see Abrahamson v. Hershman, 701 F.2d 223 (1st Cir.
1983); Mrs. B. ex rel. M.M. v. Milford Bd. of Educ., 103 F.3d 1114 (2d Cir. 1997); Burke County
Bd. of Educ. v. Denton ex rel. Denton, 895 F.2d 973 (4th Cir. 1990); Tenn. Dep’t of Mental
Health & Mental Retardation v. Paul B., 88 F.3d 1466 (6th Cir. 1996); Ind. Sch. Dist. No. 284
v. A.C. ex rel. C.C., 258 F.3d 769 (8th Cir. 2001); Clovis Unified Sch. Dist. v. Cal. Office of
Admin. Hearings, 903 F.2d 635 (9th Cir. 1990) (per curiam); McKenzie v. Smith, 771 F.2d 1527
(D.C. Cir. 1985); see also Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853 (11th Cir. 1988).
2
See A.C., 258 F.3d at 774 (“[T]he IDEA requires that a state pay for a disabled
student’s residential placement if the student, because of his or her disability, cannot
reasonably be anticipated to benefit from instruction without such a placement.”); Mrs. B., 103
F.3d at 1122 (“In deciding if a school must fund a residential placement, the court must
determine whether the child requires the residential program to receive educational benefit.”).
26
No. 08-10604
residential placement, the court must still ensure that the placement in question
is proper before requiring the school district to fund it. Our test accomplishes
this task by limiting reimbursement to those residential placements that are
primarily oriented toward enabling the child to obtain an education, keeping in
mind of course the IDEA’s broad conception of education. And while not
technically part of the standard itself, this limitation is one that other courts
have already placed on Kruelle. That is, courts applying Kruelle have not ceased
their analysis upon determining that some residential placement is necessary.
They have instead gone on to determine whether the particular placement for
which the parents are asking to be reimbursed is itself proper.3 The second step
of our test, then, is also consistent with the approach of other circuits.
In brief, the test we adopt today is consistent with that of our sister
circuits. I therefore concur.
3
See, e.g., A.C., 258 F.3d at 777–79 (finding that a residential placement was necessary
for a child and remanding to determine whether the particular placement was appropriate);
Clovis, 903 F.2d at 641–47 (denying reimbursement for an inappropriate placement even
though both parties agreed that a residential placement of some kind was necessary).
27