Tenth Circuit Devises New Test for IDEA Reimbursement
Under the Individuals with Disabilities Education Improvement Act (IDEA), students with disabilities are entitled to a free and appropriate education (FAPE) tailored to their specific needs through the use of an individualized education plan (IEP). If the district fails to provide a FAPE, the parents can look elsewhere and enroll the child in a private facility - on the original school district’s dime.
Elizabeth is a special needs student. While she had progressed through most of the tenth grade, her emotional disturbances were interfering with her educational progress and eventually necessitated treatment in a facility. While she was undergoing treatment, her prior school district notified her parents that she was being de-enrolled from her school placement and that an IEP would not be provided until Elizabeth was returned to the district.
Elizabeth's parents eventually enrolled her in a residential treatment center and accredited educational institution in Idaho and sought reimbursement from Jefferson County under the IDEA due to their failure to provide a FAPE.
An Impartial Hearing Officer, Administrative Law Judge, and the District Court all sided with Elizabeth's parents. The district did not challenge the determination that they failed to provide a FAPE and instead challenged the reimbursement. The question for the Tenth Circuit was, does a mixed residential and educational facility qualify for reimbursement?
At present, there is a circuit split on the issue.
The Third Circuit's "inextricably intertwined" test , followed by eight other circuits, asks whether the non-educational treatment is necessary to the procurement of a proper education, or to put it differently, are the educational and other services severable? The muddled test also looks at the focus of the facility and whether that focus is on education or medical treatment.
The Fifth and Seventh Circuits have their own tests that ask if the placement is essential for education and whether the placement is primarily oriented towards providing an education. The Fifth Circuit then requires that the judge parse the expenses and delineate which are educational and therefore reimbursable.
Though the court held that Elizabeth's parents prevailed under either test, and much to the chagrin of their concurring colleague, the Tenth Circuit parsed their own four part test from the statute:
(1) Determine whether the school district provided or made a FAPE available to the disabled child in a timely manner; if so, the placement is not reimbursable.
(2) Determine whether the private placement is a state-accredited school; if not, the placement is not reimbursable.
(3) Determine whether the private placement provides specially designed instruction to meet the unique needs of a child with a disability. If not, it is not reimbursable.
(4) If the private placement provides additional services beyond instruction, determine whether such additional services can be characterized as "related services" under the Act (services required to assist a child with a disability to benefit from special education) excepting medical services which are not for diagnostic and evaluation purposes. If the additional services cannot be so characterized, they are not reimbursable.
Needless to say, the parents prevailed under that test as well. The district did not contest their failure to provide a FAPE. Elizabeth's new institution is an Idaho accredited educational institution. It also provides a tailored education consisting of three hours of class in the morning and an hour and a half of guided homework per night. The facility's emotional treatment is done, in large part, to facilitate the educational objectives.
Related Resources:
- Jefferson County School District v. Elizabeth E. (Tenth Circuit Court of Appeals)
- Failure to Diagnose ADHD Doesn't Fall within IDEA SOL Exceptions (FindLaw's U.S. Third Circuit Blog)
- Special Education and Disability Access (FindLaw)
