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Forest Grove Case Drops Other Shoe

In a decision filed December 8, 2009, the United States District Court for the District of Oregon issued a ruling in the case that went all the way to the United States Supreme Court and back on the issue of whether a school district could be liable for tuition reimbursement to a private school in a case where the student had never before received special education services from the public school district.  In Forest Grove School District v. T.A., 129 S.Ct. 2484 (2009), the Supreme Court held that the IDEA does not pose a categorical bar to such reimbursement. On remand for a determination of whether the hearing officer’s reimbursement order should stand, the United States District court reversed, denying reimbursement to the parents on equitable grounds.

So, what equitable factors should be considered in determining whether reimbursement is appropriate and if so, how much?  According to the Forest Grove court (citing others), notice to the school district provided by the parents of the need for private placement, existence of other more suitable placements, the efforts expended by the parents in securing alternative placements, the general cooperative or uncooperative position of the school district, and whether the student was placed for reasons unrelated to his/her disability are all permissible considerations.

In this case, the parents did not provide notice to the district until after the placement had already been made on March 24th, and then requested a hearing to require evaluation on April 18th.  The district agreed to evaluate when asked and determined eligibility did not apply under either IDEA or Section 504 as of August 26th.  On the theory that the district could not be held liable for reimbursement until after the “wrong” eligibility determination was made, this excluded liability for reimbursement during the period March 24th to August 26th.

The court found no helpful evidence in the record regarding the existence of other more suitable placements for the child, but found that the parents expended little effort in securing the placement at Mt. Bachelor Academy, doing so immediately after obtaining a recommendation from a professional, without even visiting the school.  The court did find that the district failed to follow up on possible ADHD/OHI eligibility in an earlier referral, so the district’s lack of cooperation in the referral process weighed in favor of reimbursement.  However, the “decisive factor” in the court’s decision was cited as the parents’ decision to enroll the student in private school not because of the ADHD that resulted in eligibility for special education, but because of drug use and abuse of marijuana so severe that he was occasionally so drugged he could not get out of bed or speak, made thousands of dollars worth of calls to phone sex lines, scanned Internet pornography sites, and ran away from home.  The school enrollment application therefore listed “inappropriate behavior, depression, opposition, drug use, runaway” as reasons for the placement.

Finally, although not citing this as an equitable factor in the court’s decision, the court noted that the cost of the Mt. Bachelor Academy placement exceeded $5,000 per month, which, if provided for every student diagnosed with ADHD, could result in expenditures for tuition just for this subgroup of students somewhere between $12M and $26M per year, assuming a 9-month school year.  Judge Mosman stated in his decision that he included this fact in his decision to demonstrate that “decisions, such as the one in this case, can have potentially devastating real world implications”.