Public School Districts Obligated To Pay For Residential Treatment Center For Special Education Students

BY DORENE J. PHILPOT, ATTORNEY AT LAW

When school-age children (through age 26 in Michigan) require a therapeutic or specialty day school or a Residential Treatment Center placement in order to receive an appropriate education, it is the public school district’s responsibility to fund the costs of that placement. However, public school districts are not eager to advise parents of this information. Most often, parents accidentally stumble upon this information on the Internet or by talking with other parents of children with special needs.

More often than one might imagine, school-age students who need a therapeutic day treatment or residential treatment center placement have never even been identified by their school district as eligible for special education. More frustrating, parents have not been informed that it is the school district’s duty to fund such a needed placement, so the parents of those children have never received their Notice of Procedural Safeguards and have no idea what their rights are. The Michigan Department of Education has posted a copy of the Notice of Procedural Safeguards at:https://www.michigan. gov/-/media/Project/Websites/mde/specialeducation/ proc-safe/Procedural_Safeguards_Notice.pdf

Even children who have not been properly identified under districts’ federal and state “child find” obligations can be eligible for private placements.

Because school districts almost always resist voluntarily incurring the costs of a residential placement for a special education student, parents must initiate litigation against the district in order to get a residential placement. That’s why there are numerous special education hearing officers and federal court decisions involving schoolordered placements of students in residential treatment centers and therapeutic or specialty day programs.

RESIDENTIAL PLACEMENTS CAN BE APPROPRIATE FOR STUDENTS WITH EMOTIONAL IMPAIRMENT / DISTURBANCE OR AUTISM

The Supreme Court has made clear that hearing officers and courts may award reimbursement to parents who purchase educational services for their children who have been denied an appropriate education by the public schools, Florence County Sch. Dist. Four v. Carter, 10 U.S. 7 (1993). In order to receive reimbursement for the unilateral private placement of a child with a disability, the parent must prove (1) the public school’s IEP is not appropriate under IDEA; and (ii) the private placement was appropriate. Sch. Comm. Of Burlington v. Dept. of Educ. Of Mass, 471 U.S. 359, 370 (1985); Richardson Ind. Sch. Dist. V. Michael Z., 580 F.3d 286, 293 (5th Cir. 2009). Although the private placement need not meet all state education standards for public schools, it must nonetheless be appropriate in light of the student’s needs. Florence County School District Four v. Shannon Carter bnf Emory Carter, 510 U.S. 7, 13 (1993).

If a student has ever been hospitalized for emotional or mental health reasons, whether on an inpatient or outpatient basis, there is a greater likelihood that the student will need a therapeutic placement to receive an educational benefit. At the very least, the student’s hospitalization should prompt the IEP team to consider whether a therapeutic placement is necessary. North Penn Sch. Dist., 50 IDELR 118 (SEA PA 2008). Neither the IDEA nor the Part B regulations define “therapeutic placement.” However, the ordinary meaning of the word “therapeutic” refers to healing, curative, or restorative properties. Decisions that address the term in the special education context indicate that therapeutic placements typically consist of small, structured classes with emotional and behavioral supports. See, for example, Boston Public Schools, 50 IDELR 55 (SEA MA 2008); Wood Dale School District No. 7, 51 IDELR 260 (SEA IL 2008); and Braintree Public Schools, 5 ECLPR 119 (SEA MA 2008).

GOOD GRADES ARE NOT THE END OF THE CHILD FIND INQUIRY

The Supreme Court has twice explicitly rejected the view that every handicapped child who is advancing from grade to grade is automatically receiving a free appropriate public education. Endrew F. v. Douglas Cty, 137 S. Ct. 988, 1000, n. 2 (2017); Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982), n. 25 at 203. The Supreme Court established a two-part test for determining whether a school district provided a FAPE to a student under IDEA: 1) did the school district comply with IDEA’s procedures; and, 2) was the IEP reasonably calculated to confer educational benefit to the student.

SCHOOL REFUSAL / TRUANCY CAN TRIGGER SUSPICION OF DISABILITY

The case law makes clear that school refusal is one of the common signs that trigger suspicion of the presence of a disability and a duty to evaluate. Case law makes clear that districts must attend to school refusal and truancy, as it relates both to child find for students without an IEP and as to FAPE for students who do have an IEP.

If absences result from anxiety, a student may require a placement in a therapeutic setting. Board of Educ. of Montgomery County, Md. v. S.G. by N.G., 47 IDELR 285 (4th Cir. 2007, unpublished ).

In M.M. and I.F. ex rel. L.F. v. New York City Dep’t of Educ., 63 IDELR 156 (S.D.N.Y. 2014), a high schooler’s anxiety and depression adversely affected her education by preventing her from attending school. The U.S. District Court, Southern District of New York held that the district erred in finding her ineligible for IDEA services. Finding that the student’s residential placement addressed her educational needs, the court ordered the district to reimburse the parents for their tuition costs.

Similarly, in Leggett v. District of Columbia, 65 IDELR 251 (D.C. Cir. 2015), the District of Columbia had to reimburse the parent of a high schooler with SLDs, anxiety, and depression for expenses she incurred when she placed her daughter in an out-of-state boarding school. Holding that the district’s failure to develop an IEP made the residential placement “necessary,” the U.S. Court of Appeals, D.C. Circuit reversed a decision in the district’s favor and remanded the case for further proceedings.

See also Independent School District No. 284 v A.C., 258 F. 3d 769 (8th Circuit 2001). Residential treatment for a child was warranted because the child suffered from emotional and behavioral disorders that manifested themselves in “classroom disruption, profanity, insubordination and truancy.” 258 F. 3d at 771.

EXAMPLES OF RELIEF SEEN IN CHILD FIND / RTC PLACEMENT CASES

1. Eligibility for special education and related services.

2. An IEP that provides a Free Appropriate Public Education (FAPE)

3. Day treatment and/or residential treatment center placement at district expense.

4. Psychological counseling, which is a “related service” that must be provided if “required to assist a child with a disability to benefit from special education.” [ER 1047]. 20 U.S.C. §§1401(9) and (26)(A); Clovis Unified Sch. Dist. v. California Office of Admin., 903 F.2d 635, 643 (9th Cir.

1990); Mark H. v. Lemahieu, 513 F.3d 922, 925-926 and 926 n.1 (9th Cir. 2008).

5. Reimbursement for parental costs of RTC placement and associated expenses (such as mandatory fees, travel, lodging, etc.)

6. Compensatory educational services. Compensatory education awards, which can include tuition reimbursement, are designed to provide services prospectively to compensate for a past deficient program and should put children in the position they would have been but for the violation of the IDEA. Spring Branch Indep. Sch. Dist., 938 F. 3d 695, (5th Cir. 2019). The “IDEA authorizes reimbursement for the cost of private specialeducation services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.” Dallas Indep. Sch. Dist., 865 F.3d 303, (5th Cir. 2017). Compensatory services are an equitable remedy that seeks to make up for “educational services the child should have received in the first place,” and “aim[s] to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA.” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see 20 U.S.C. § 1415(i)(2)(C)(iii).

7. Any other relief that the parties or a hearing officer deems appropriate or which is recommended by the student’s experts and evaluators. (This “any relief” is consistent with the language in the IDEA, which says when there is a finding of a denial of FAPE, a court “shall grant such relief as the court determines is appropriate.” 20 U.S.C. §1415(i)(2)(C) (iii). Courts have broad discretion in crafting remedies for violations of IDEA. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). “The ordinary meaning of these words confers broad discretion on the court.” Burlington School Comm. v. Massachusetts Dept. of Ed., 471 U.S. 359, 369 (1985). Thus, that phrase “means that equitable considerations are relevant in fashioning relief.” Id. at 374. Further, the express language of Rule 54(c) of the Federal Rules of Civil Procedure discusses remedies that aren’t even pleaded. “Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”

Fed.R.Civ.P. 54(c) (emphasis added.) The language of IDEA is in line with the concept embodied in Rule 54(c).)

Dorene Philpot is a private practice attorney licensed in Michigan, Indiana and Texas. She devotes her 24-year+ practice entirely to representing special needs children and their parents under the Individuals with Disabilities Education Improvement Act. She is the recipient of a national award for her advocacy work for students, i.e. the 2012 Diane Lipton

Award for Outstanding Educational Advocacy from COPAA (Council of Parent Attorneys and Advocates). She is the author of “DoIt-Yourself Special Education Due Process: An Educational Guide” which is available at www. learningenabledpublications.com. She is a member of Mensa. She gives presentations to parent groups and other organizations on a regular basis about special education law rights of children. Before becoming a lawyer, Dorene was a journalist for 13 years, most recently serving as an editor at The Indianapolis Star and Indianapolis News. Before that, she worked as an editor at other newspapers and magazines, including The Saturday Evening Post.