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. 

The Instructional Methods Blues

This week a parent called me to ask if it is true that the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.), does not require schools to provide instruction that is better suited to addressing their child’s learning needs because schools are only obligated to provide instruction is reasonably calculated to provide their child an educational benefit in light of the child's circumstances. 

The parent explained that he and a university reading expert had just attended his son's IEP meeting. They had presented a report of testing which documented that if the reading program currently used for his son’s specially designed instruction (SDI) were changed to a different reading program, this would more rapidly close the discrepancy between his son’s reading rate and comprehension skills and those of his non-disabled peers. Reading from his meeting notes, the parent said that after their presentation, the other IEP team members were silent and looked toward the AEA consultant who was chairing the meeting. The consultant replied that although the child would probably learn to read faster with better comprehension if the school changed to the recommended reading program, the school didn’t need to make the change because the child’s reading goal aim line is trending upward (albeit very slowly) and this means the child is already receiving “some benefit.” When the parent and university reading expert responded that changing reading programs would allow the child to meet his goal faster, the AEA consultant said: This doesn't matter. All the school district is required to do is provide him with 'some benefit.' This was proven last year in the Kass case.

I moaned inwardly and began explaining the “Kass case.”

On August 21, 2020, Charles and Lisa Kass, filed a due process complaint with the Iowa Department of Education. They claimed, among other things, that the school district and AEA had denied their son, BK, a free appropriate education (FAPE) because the method of reading instruction used was not reasonably calculated to enable him to learn to read. See 30 D.o.E. App. 032. At the due process hearing, the parents and their expert witness made the case that two other reading programs would have been a better choice for BK. Id.

After the due process hearing, Administrative Law Judge David Lindgren of the Iowa Department of Inspections and Appeals issued his decision finding against the parents. Among other things, he wrote that the issue was not whether there were better methods of reading instruction for BK, but whether the school district's choice of methods was reasonably calculated to provide him with a FAPE under the circumstances. Id. He wrote that a school district may use any educational methodology that enables a student with a disability to make progress appropriate in light of the child's circumstances. Id. The ALJ further stated that the IDEA does not require a school district to provide a special education student with the best education or services available and wrote that: "[n]either the parents' preference for a different methodology nor evidence that the student would make greater progress with a different technique will make the District's program inadequate." Id.

The parents appealed ALJ Lindgren’s decision to the Federal District Court for the Northern District of Iowa, which upheld the ALJ’s decision. See Kass ex rel. Kass v. Western Dubuque Community School District. 

The parents appealed the federal district court's decision to the Eighth Circuit Court of Appeals on December 5, 2022, and it was argued last week. The case number and title are #22-3506, Charles Kass  v.  W. Dubuque Comm. School Dist. When the court’s decision is published, we will learn whether the Eighth Circuit thinks “we don’t have to” is a good enough reason under the facts of this case for refusing to change a child’s reading program to one that would more effectively enable the child to master the skills needed to meet his reading goal.

Weeping, the parent told me that he couldn’t understand why the special and general education teachers weren’t interested in being more successful with his child. He noted: "If someone told me a simple way to do my job faster and more successfully, I’d be excited." I told him that as a former teacher, I didn't understand it either. I thought the best thing about teaching was finding an effective way to reach a student whose progress was delayed by disability challenges. I recalled that each time a new approach “worked” and a child made a leap of progress, I felt “over the moon.”

I explained that at the take-home message from the “Kass case” should be that it does NOT prove that the IDEA requires school districts and AEAs to limit their instruction to the type or amount that allows a child to make just enough progress to escape a legal finding that they denied the child a FAPE.  Moreover, I explained that although neither state or federal laws require school districts and AEAs to employ the “best” instructional methods for children with disabilities, there is nothing in the IDEA that requires school districts and AEAs to limit the methodologies they use for specially designed instruction to those that will prevent children from making progress beyond what they are currently achieving.

Good Points from Greg Branch Opposing AASA Statement on Due Process and Mediation

This morning I would like to thank California special education attorney-blogger, Greg Branch, for bringing light to a number of the reasons why the recent proposals of the School Superintendents' Association (AASA) are flawed and should not be followed. 

I encourage readers to read Mr. Branch's blog article  and Examiner article  Examiner article in which he thoughtfully explains why the Individuals with Disabilities Act (IDEA) is a critical source of civil rights for children with disabilities.

Special Education Due Process Hearings Part 1: The Complaint

"Mediation didn’t work . . . the school district and its attorney are known for their stubborn opposition to parent special education requests, and there’s still a serious problem . . ."

In my experience, the vast majority of special education disputes are resolved through mediation. However, under some circumstances, parents and the attorneys who represent them decide it is necessary to go a step further and file a due process complaint with the state department of education, in order to have the case decided by an administrative law judge or hearing officer.

Federal regulations that implement the Individuals with Disabilities Education Act (IDEA) require the states to have a dispute resolution system and procedures in place, including provisions for impartial due process hearings. 34 CFR § 300.511. Common subjects of due process complaints include: eligibility for special education, a child’s educational placement, and issues involved in the provision of a free appropriate public education (FAPE) to a child.

A due process action begins when the parent (or school district) files a written complaint with the state department of education in which the child’s school is located. A complaint filed on behalf of the parents of a child with a disability must contain specific information, including a statement that the school district has violated a requirement of the IDEA or its implementing regulations, and provide the facts upon which the statement is based.

It is very important that the filed complaint contain all the issues in dispute because the party requesting the due process hearing will not be allowed to raise any issues at the due process hearing that were not raised in the due process hearing complaint. If after filing the complaint the parents believe they need to change or add to it, they may do this only if the school district (and any other education agency named in the complaint) agrees to this in writing, or the administrative law judge (or hearing officer) grants permission to amend the complaint.

It is also very important that the complaint be timely filed. The violation or violations alleged in the complaint may not have occurred more than two years before the date the parent or public agency knew or should have known about the acts/omissions that form the basis of the complaint.

AASA, the Emperor's New Clothes, Special Education Mediations and Due Process Hearings

In Hans Christian Andersen's story, The Emperor's New Clothes, a vain king with an insatiable appetite for fine clothing, finds himself marching in a parade wearing nothing but his birthday suit. He is the victim of his obsession with sartorial splendor, and of a pair of swindlers who have told him that his "new clothing" is made from such wonderful stuff that it is invisible to anyone who is incompetent or stupid. After an elaborate charade in which the king is "dressed" in the new garments, his lord chamberlain, ministers and advisors who are fearful of losing their jobs, public recognition, and authority, heartily engage in the fraud proclaiming, "How beautiful the Emperor's new clothes are!" Notwithstanding their falderal, upon seeing the king walking naked in public, a small child says, "He doesn't have anything on!" Although the king knew the child was right, he decided that the parade would go on, and holding himself even more proudly, he continued the procession with the lord chamberlain walking along behind him carrying the train of his nonexistent coat.

This story came to mind when I read the 30 page paper issued on April 8, 2013, by the AASA (American Association of School Administrators). In it, the AASA recommends that Congress completely eliminate special education due process hearings and remove the provisions of the IDEA that make mediation agreements legally binding and allow attorneys to represent parents at those mediations. The AASA proposes to replace the procedures with state-approved IEP meeting facilitators, non-binding mediation, and provisions allowing parents to file law suits directly in federal court (think $$$ for the parents) without an opportunity to resolve disputes through state department of education administrative hearings.  Since due process hearings are less expensive than federal court proceedings, this would place an additional burden on parents who need to challenge school decisions.

What kind of thinking underlies proposals that would essentially place the fox in charge of the hen house? Are the AASA’s recommendations merely based on an arrogant and naive assumption that public education systems and their personnel are so highly expert and scrupulously thorough that they identify and accurately evaluate each and every child with a disability in every area of their suspected disabilities, write IEPs in a manner that will meet each child’s unique needs and conforms to the law, and that the school personnel who implement them are all equally competent and effective, and neither harbor prejudices nor have their hands tied by restrictions in regard to the assistance they are allowed to recommend or provide?

I don’t think so.

It seems more likely that like the king in the story above, the AASA and its members know when the education systems and personnel they represent aren’t appropriately garbed. But instead of acknowledging and taking responsibility for the nakedness of those systems and personnel, they prefer to advocate for the elimination of the mediation and due process hearing procedures that have an inconvenient tendency to reveal that public education agencies and school districts don’t always operate in compliance with the IDEA and its implementing regulations. By extension, the AASA would probably also support the elimination of studies, such as the one conducted by the federal Department of Education in 2009, which found that only twenty-eight states met the IDEA’s compliance standards.

If the AASA’s proposals demonstrate anything, they demonstrate the kind of overreaching on the part of public school agencies that Congress anticipated when it enacted the portions of the IDEA which afford procedural protections to the parents of children with disabilities.  I join with COPAA (Counsel of Parent Attorneys and Advocates) which has stated that the AASA document is nothing more than a shameful attack on parent and student civil rights.  See COPAA's statement at:  http://www.copaa.org/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm

Mediation and Special Education Dispute Resolution

"I’m calling to ask you about whether there is anything I can do about . . ."
 
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:

1. The school district says my child isn’t eligible for special education.

2. The IEP team doesn’t think my child needs more or different special education and related services.

3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .

4. The IEP team wants to move my child to a different classroom.

5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .

6. The school won’t allow my child to participate in . . .

The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
 
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).

A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.

When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."

In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states. 

As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency).  I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process.  However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation.  Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.

Parents May Be “Outvoted” at IEP Team Meetings, But Still Have Rights

The U.S. Department of Education’s Office of Special Education Programs (OSEP) responded to a parent’s letter inquiring about IEP Team decision making in its Letter to Richards, 55 IDELR 107 (OSEP 2010). In the letter, OSEP stated that it is not appropriate for an IEP to make decisions about a child’s IEP by majority vote. OSEP also noted that while the IEP team should try to reach general agreement, the school district has the final responsibility for determining the appropriate services.

When parents and school districts disagree about a child’s IEP, parents commonly have the feeling that they have been, in effect, outvoted by the school district and area education agency (AEA) personnel at the meeting. While the law assigns school districts the final responsibility for determining appropriate services, it also requires that the district provide “prior written notice” of the school district’s decision regarding the child’s educational program and the parents’ right to request a due process hearing.

“Prior Written Notice” is notice given in writing to parents in regard to an action proposed or refused by the school district with respect to a child’s special education program. School districts are required to provide it whenever the district or AEA refuses to implement a parent’s proposal, or proposes to change a child's identification, evaluation, or placement. The proposal or refusal must be in regard to a matter over which the IEP team decision making authority.

The written notice must be provided to the parent after the district or AEA has made the decision to refuse or propose, but within a reasonable time before the district or AEA implements the proposed action. Before the action is implemented, the parent, district, or AEA has the right to request mediation or an impartial due process hearing on any proposed or refused action.

Prior written notice MUST contain the following:

∙ A description of the action proposed or refused.
∙ An explanation of why the district or AEA proposes or refuses to take the action.
∙ A description of the options the district or AEA considered and the reasons why those options were rejected.
∙ A description of each evaluation procedure, test, record, or report the district or AEA used as a basis for the proposed or refused action.
∙ A description of any other factors that are relevant to the district or AEA’s proposal or refusal.
∙ If the proposed action a change in the child’s identification, evaluation, or placement, when that action will be implemented
∙ The name and contact information about the person to whom the parent may address questions regarding the notice
∙ A statement that parents have the right to challenge the decision by invoking their rights under the IDEA’s procedural safeguards.

School districts MUST provide parents with prior written notice when they refuse or propose to do any of the following:

∙ Conduct or deny an initial evaluation
∙ Change or refuse to change a child’s services or placement
∙ Add, refuse to add, or terminate a service, support, or related service
∙ Change or refuse to change the means through which the child’s services are delivered
∙ Provide, deny, delete, or change a child’s access to Extended School Year services
∙ Add, change, or delete an IEP goal
∙ Whenever discipline results in a change of placement

Due Process in Special Education Hearings

When parents of children with disabilities ask why a due process is not simply called a trial, they are asking an important question that goes directly to their rights under the U.S. Constitution. The Fifth Amendment guarantees due process, stating that ""No person shall . . . be deprived of life, liberty, or property, without due process of law." This federal right is applied to state governments by the 14th Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Due process of law is a fundamental, constitutional guarantee. It means that when the government acts to take away life, liberty, or property, all legal proceedings will be fair and the people affected will be given notice of those proceedings and an opportunity to be heard. When the U.S. Supreme Court decided Goss v. Lopez (419 U.S. 565) in 1975, it held that state compulsory school attendance laws create a property right in education, and on that basis, public schools may not deprive a school aged child of the right to an education without ensuring that a fair process is available.

Under the Individuals with Disabilities Education Act (IDEA), parents and schools may request a “due process hearing” to resolve a dispute. Due process complaints are not filed in a state or federal district court, but rather through the state’s system for enforcing educational rights under the IDEA. In Iowa, a due process complaint is filed with the Iowa Department of Education, and heard by an administrative law judge in a formal proceeding that is much like a trial. At the hearing, both the parents and the school district present arguments and evidence.

When parents file a due process complaint, they are, in effect, suing the school district to enforce their child’s legal right to a free, appropriate, public education. Among the specific kinds matters they may ask the judge to address are:

The current IEP is not meeting the child’s needs
The IEP is not being implemented as written
The school’s refusal to evaluate the child
The school’s refusal or proposal to initiate or change the child’s identification
The school’s proposal or refusal in regard to the child’s educational placement
Disagreements with IEP Team decisions