Split Widened: Test for Reimbursement of Residential Placement Under IDEA

Per Jefferson County Sch. Dist. R-1 v. Elizabeth E. (10th Cir. Dec. 28, 2012)

IDEA is a font of federal litigation.  In this case, the Tenth Circuit widens an extant circuit split concerning the interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) by creating a new, third position.

The statute provides: 

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
 

20 U.S.C. § 1412(a)(10)(C)(ii) (emphases added).  The italicized terms are defined elsewhere in the statute:

• Special education:  "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings." 20 U.S.C. § 1401(29)(A). 
•  Related services: "transportation, and such developmental, corrective, and other supportive services (including . . . psychological services, . . . social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education" 20 U.S.C. § 1401(26)(A).
• Secondary school: "a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law. . . ." 20 U.S.C. § 1401(27)

In brief, then, the statute permits reimbursement of private educational expenses if (1) the public school did not provide free and appropriate public education (FAPE) , and (2) the private school is proper (or appropriate).  (See p. 10.)

The Tenth Circuit notes that the circuits have, to date, taken two approaches in determining whether (2) a private school is appropriate.  The CA1, CA2, CA3, CA4, CA6, CA8, CA9, CA11, and CADC all largely employ an "inextricably intertwined" test that evaluates whether the general purpose of the private  placement  and/or specific private services are "segregable" from the educational goal.  If segregable, not reimburseable; if not segregable, reimburseable.  (pp. 10-13, 20.)

In contrast, the CA5 and CA7 espouse a "primarily oriented" standard that examines whether (1) the general purpose of the private placement is primarily educational (as opposed to medical/social/etc.) by determining whether it is necessary to achieve an educational goal, and (2) the specific private expenses are related to that educational goal by determining if progress is measured by an educational yardstick.  (pp. 14, 20-21.)

After laying both these tests out, the Tenth Circuit declines to follow either.  Although it explicitly disclaims doing so (p. 21 n.5.), the CA10 adopts a new test tied directly to the statutory language:

(2) Determine whether the private placement is a state-accredited elementary or secondary school; if not, the placement is not reimbursable.  20 U.S.C. §§ 1412(a)(10)(C)(ii), 1401(27); then

(3) Determine whether the private placement provides special education, i.e., "specially designed instruction . . . to meet the unique needs of a child with a disability"; if the placement provides no such instruction, it is not reimbursable.  Id. § 1401(29)(A).

(4) If the private placement provides additional services beyond specially designed instruction to meet the child's unique needs, determine whether such additional services can be characterized as "related services" under the Act.

 (pp. 19-20.)

In all, my hat is off to the CA10.  As longtime readers know, Im a textualist.  And this test is the only one that adheres to the statute's text, as the opinion itself repeatedly points out.  Moreover, the opinion is also successful in pointing out the flaws in the other tests.  The segregable test is overinclusive, in the sense the dialysis is certainly necessary to an education, but not at all educational.  (p. 12.)  And the primarily oriented test is both over and under inclusive, in that it would exclude purely medical services necessary to allowing educational instruction, but include educational services that are not "required" for an appropriate education.  (p. 23.)

Again, an interesting split.  I hope other circuits take note.  But the case makes a poor vehicle because the lower courts (both district and administrative) concluded that reimbursement was proper under any of the tests.  (p. 15.)