The Long and Winding to School-Supported Private School Placement

I receive a number of calls from parents of children with IEPs asking how they can require their child’s school district to pay the tuition and related costs for their child's placement in an out–of–state private school. 

I explain that unless a school district agrees to the placement and to payment of the tuition and fees, a parent will have a long, tough road ahead. An example of this complex terrain is demonstrated by the following abbreviated history of the Steckelberg v. Chamberlain School District case.  

Background:

The Steckelberg's son, AMS, was a special education student in a South Dakota public school high school. He had several diagnoses, including autoimmune disorder, PANS/PANDA, Obsessive Compulsive Disorder, Tourette's Syndrome, and random tic disorders. His symptoms prevented him from sitting still in the classroom, paying attention to his teachers, and learning the information being taught. It was difficult for AMS to control his challenging behaviors which included shouting, swearing, not following rules, cheating, and sexual behaviors. 

2018:  

• In February, a behavior analyst hired by the school district who had performed a Functional Behavior Assessment of AMS, developed and gave to the school district a behavior support plan. However, it was never shared with AMS's parents, teachers, or the IEP team, and was never implemented.
• In the summer, before AMS started his junior year, he had a sexually related incident with a six-year-old girl that resulted in criminal charges.
• On December 14, the principal sent an email to the parents stating, "I'm at the point where I don't think being at Chamberlain High School is the right setting for [AMS]." 

2019: 

• The IEP team met on January 25 with the parents in attendance. During the meeting, the parents agreed to home placement of AMS, believing that AMS would receive behavioral and educational supports and services at home. However, the School District did not provide those supports and services, and the home placement was a disaster.
• In April, the parents gave to the School District information about some possible out-of-state placements for AMS that they had located. Their list included the Kaizen Academy, a residential treatment facility in Utah. The School District contacted Kaizen to see if AMS might be a fit for that facility. The District didn't pursue the placement when it learned that Medicaid would not pay any portion of the costs associated with AMS's attendance at Kaizen.
• On August 26, although neither Medicaid nor the School District was willing to pay any portion of the costs for educational and therapeutic services, room, board, or transportation, the parents enrolled AMS at Kaizen Academy.
• On August 30, the parents filed a due process complaint with the South Dakota Department of Education, alleging that the school district had denied AMS a FAPE and that his placement at the Kaizen Academy for therapy and education should be paid for by the School District under the Individuals with Disabilities in Education.*

2021: 

• On July 8, the hearing officer ruled on the parents' due process complaint, likening AMS's circumstances to those of the special education student in S.B. v. Murfreesboro City Sch., 2016 U.S. Dist. LEXIS 31675, 2016 WL 927441 (M.D. Tenn. March 11, 2016), in which the district court found that the student's educational difficulties could not be separated from his emotional and behavioral problems, and that the residential placement was needed for the student to benefit from special education. The hearing officer in the Steckelberg parents' due process case ruled that the School District failed to offer AMS a free appropriate public education ("FAPE"), that the private placement at Kaizen Academy was proper, and that the School District was responsible for reimbursing the parents for AMS's private tuition and travel expenses. 
• On August 6, the School District appealed the hearing officer's decision to the South Dakota State District Court. 
• On August 23, the parents filed a motion to remove the case from state court to the US District Court for the Southern District of South Dakota.

2022:  

• On January 18, the US District Court for the Southern District of South Dakota found in favor of the parents' request for the case to be removed from state to federal court. Steckelberg v. Chamberlain Sch. Dist., No. 4:21-CV-4147-LLP, 2022 U.S. Dist. LEXIS 10294 (D.S.D. Jan. 18, 2022).
• On the same day, it affirmed the hearing officer's due process decision. Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).
• AMS graduated from high school at Kaisen Academy.

2023:  

• The School District appealed the federal district court decision to the Eighth Circuit Court of Appeals.
• On August 15, the Eighth Circuit issued a decision upholding the due process hearing decision and the federal district court ruling that both found that the School District failed to provide AMS with a FAPE and awarded reimbursement to the parents of his private school tuition and related costs. See Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).

*The IDEA (20 U.S.C. § 1412(a)(10)(C)(i)) bars private school tuition reimbursement when a school district makes a free appropriate public education (FAPE) available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child's needs. Additionally, 20 U.S.C. § 1412(a)(10)(C)(iii) covers the circumstances under which the amount of reimbursement for private school tuition described in § 1412(a)(10)(C)(ii) may be reduced or denied by a public educational entity, such as when a parent fails to give 10 days' notice before removing a child from public school or refuses to make a child available for evaluation, and § 1412(a)(10)(C)(iv) lists circumstances in which a parent's failure to give notice may or must be excused.