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Supreme Court Hears Case on Private-Placement Reimbursement

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From special guest blogger Erik Robelen:

The U.S. Supreme Court this morning heard a case that is likely to further flesh out the circumstances under which a family can expect a public school district to pay for the private education of a student with disabilities.

At issue in Forest Grove School District v. T.A. is whether a student who never received special education services from a district is eligible to be reimbursed for getting such services from a private school.

A lawyer for the 6,000-student Forest Grove school district, near Portland, Ore., told the justices that the Individuals with Disabilities Education Act says no, arguing that amendments to the law in 1997 make clear the student must previously have received such services from the district.

But lawyers for the Obama administration and the family of the student in question, referred to only as T.A., told the justices that the district is misreading the federal special-education law. In this case, the student had long been enrolled in the public school district, but had not received special education services while there.

The high court justices probed a number of issues in questioning lawyers for both sides.

Justice David H. Souter and John Paul Stevens both worried aloud that if a family and district were in disagreement over whether a student was eligible for special-education services—as was the case here—the child could be left without services for a long time while the elibility was decided.

“Isn’t that the kicker here?” Justice Souter said. “This kind of thing could go on for years.”

Chief Justice John G. Roberts Jr. seemed to suggest that it’s not unreasonable for a family to at least try out special education services provided by a district before going elsewhere.

“All they would have to do is try the plan for 10 days,” he said.

Justice Roberts wondered whether a ruling in favor of the parents would likely spur more parents to seek private education for their children at public expense.

But Eric D. Miller, a lawyer for the U.S. Department of Justice, said there was no basis for such a concern, arguing that the instances of students being “unilaterally” placed in a private school to get special education services are “quite rare.”

He also emphasized that if the justices found in the parents’ favor, such a ruling would not compel the district to pay for private education, but would simply make sure the parents could seek reimbursement.

“We’re not suggesting that reimbursement would be mandatory,” he said.

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Chief Justice Roberts argued: “All they would have to do is try the plan for 10 days,” but the only rational for such a trial is to show parents' good-faith cooperation. (What other purpose could this possibly serve?) However, if a parent really pulls her kid out after 10 days, I think the School District would argue, and any reasonable judge would agree, that the parent is in bad faith and thus deny relief. So parents are still in a no-win situation.

The good news is that Justice Kennedy seemed slightly more sympathetic to T.A., thus the outcome will likely be for parents.

I attended the Forest Grove oral argument yesterday and have read the briefs. As a practical matter, I hope the Justices are aware that there are many situations, like T.A.'s where districts fail to fulfill their "Child Find" obligations on a timely basis, if at all. I believe there may be many reasons for this: Districts sometimes take a wait and see attitude when parents come to discuss problems of young children (especially if the parents have not spent the thousands of dollars needed to get a private evaluation) - District staff may suggest in response to parents expressed concerns about "Johnny's" reading readiness/reading, for example, "it might be developmental or he seems to be coming along- let's watch him"; Districts may suggest that rather than an evaluation under special ed, parents accept "building" level or "response to intervention" (RTI) services that might go on for a year or more with eclectic approaches and varied staff before a special education evaluation is even discussed -many parents do not know their rights regarding seeking an evaluation. When evaluations are done - the process takes a couple of months, districts may still "suggest" continued building level services and many parents do not know they can seek even an IEP. If an IEP is suggested, some districts are reluctant to list disabilities specifically (such as dyslexia) and often seem to view ADHD, ASD or ED as not something districts can diagnose -"these are medical conditions" parents are told (but parents may not be told they may ask that a doctor make a diagnosis). The services provided in some public schools are not really tailored or structured to remediate certain deficiencies, but this it is often not acknowledged and there is less discussion of programs and private schools that can help child overcome deficits and thrive as learners.

Parents of young children cannot wait years to see if their child will learn to read - reseach shows it is critical to learn by age 8! Still there are parents who are so frustrated with their child's lack of progress, they are turning to private schools - they are actually upset to have to leave the neighborhood school just to get their children the educational help they need. So, I know there may be different ways to read the tuition reimbursement language in the IDEA (of course I agree with T.A.'s side on this and the "10 day" rule being a red herring), but I think that the argument about cost to the district should be thought of a bit differently. If districts timely fulfilled their "child find"
obligations (including evaluating for ALL suspected disabilities) and provided adequate specially designed instruction and related services as appropriate for students with disabilities, the costs would come way down as very few parents "want" to go to private schools for this and, moreover, they would not have that option at district expense. The overall cost to society of so many kids remaining in public school but not actually being taught adequately would be vastly reduced.

We need more "true" research based instruction with robust progress monitoring and assessments and a much more scaffolded approach to teaching and dealing with learning disabilities, such as dyslexia and various other issues, like ADHD, that affect learning. Assuming they even know their rights and are willing to pursue due process and litigation - which is unusual - most parents cannot do what T.A.'s parents did and take the financial risk of going to private school and then seeking tuition reimbursement. Without the leverage (and thus district attention) brought by the ability to obtain private school tuition reimbursement where there has been no IEP due to a district's failure to fulfill child find duties or where there is an inadequate IEP, I am concerned that tricts will not make this a priority and many more children and parents will suffer - as will our society. I sincerely hope the IDEA, with the Supreme Court's opinion, will be implemented as was intended to help children get FAPE.

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