Special Education: Federal Appeals Court rules for special education student

On Dec. 28, 2012, a Federal Appeals Court ruled in favor of parents whose daughter’s special education needs have to be paid for by the school district. The Federal Appeals Court’s ruling is a landmark ruling for many parents who are struggling with local school districts.

The panel of the U.S. Court of Appeals for the 10th Circuit in Denver ruled 3-0 for the parents of a girl with special education needs and severe emotional needs.

In the “UNITED STATES COURT OF APPEALS TENTH CIRCUIT” Introduction it states that, “Defendant-Appellee Elizabeth E., at all times relevant to this appeal, was a student in the Jefferson County, Colorado school system with substantial behavioral and emotional issues for which she required special education under the Individuals with Disabilities in Education Act (“IDEA” or the “Act”), 20 U.S.C. § 1400.”

Elizabeth’s special education needs story is unfortunately the story of many special education children.

Born in 1991, Elizabeth became the foster child of Roxanne B. and David E. at the age of 16 months after her birth parents had neglected her. At the age of three and a half, Elizabeth was legally adopted by Roxanne B. and David E.

In March 2000, Elizabeth and her parents moved to Colorado where Elizabeth attended public school. Because of Elizabeth’s “significant learning disabilities and emotional and behavioral issues,” Elizabeth became a student eligible for special education under the Individuals with Disabilities Education Act (IDEA).

For her ninth and tenth grade, following “two consecutive mediated settlements between Parents and the District concerning whether the District was meeting its IDEA obligations,” Elizabeth was enrolled in Humanex Academy, a private school in Colorado which could serve her special education needs.

In 2008, by the end of tenth grade, Elizabeth had not earned enough credits to advance to the eleventh grade. While she would start out the school year well, Elizabeth would struggle academically and socially by the end of the year.

On Aug. 11, 2008, Elizabeth’s “Parents and the District entered into a settlement agreement pursuant to which the District would pay tuition at Humanex during the 2008-09 academic year. The agreement also called for an IEP team meeting to be convened by Aug. 29, 2008, to arrange for an evaluation of Elizabeth.

On Aug. 15, 2008, Elizabeth’s parents informed the district that they were considering “temporary psychiatric hospitalization options” for Elizabeth since her behavior at home “began to deteriorate.”

On Aug. 20, 2008, Elizabeth was admitted to the Aspen Institute for Behavioral Assessment in Utah and Elizabeth’s parents notified the district on Aug. 26, 2008, about Elizabeth’s admission.

On Sept. 24, 2008, the director of Humanex Academy, Elizabeth’s private school, let Elizabeth’s parents know that Elizabeth’s school district “had withdrawn Elizabeth from the school because it was unwilling to incur the cost of her tuition when she was not in attendance. The District took this position notwithstanding an agreement it had with Humanex whereby it would be refunded at the end of the semester for any months Elizabeth did not attend.”

For the school district, having “disenrolled” Elizabeth from Humanex Academy despite the agreement with the parents appeared to be the ideal solution. “[I]t appears that at this point, the settlement agreement is moot, as parents have unilaterally placed Elizabeth at the Aspen Center in Utah. As such, Elizabeth is not a District student, and the District has no on-going responsibility to Elizabeth under the IDEA.”

Through their counsel, Elizabeth’s parents informed the district that the plans for Elizabeth were to enroll her at Innercept in Idaho and that they would be seeking “reimbursement for the cost of the placement.”

On Nov. 20, 2008, the school district responded that “As you are aware, pursuant to a settlement agreement, the District was in the process of evaluating Elizabeth to develop an individualized education program and appropriate placement for Elizabeth when her parents unilaterally placed her in a program in Utah. It now appears that her parents are transferring Elizabeth to a program in Idaho. The School District will not be providing reimbursement to the family, but stands ready, willing, and able to provide Elizabeth with a free appropriate public education if she returns to the School District.”

On Dec. 3, 2008, respectfully and in compliance with the school district’s intend of completing an IEP for Elizabeth, Elizabeth’s mother send an email to the district saying that “ [We] think that a more productive and cost-efficient way to move forward, rather than drawing lines in the sand, is to start anew and all work together to complete Elizabeth’s IEP. How would you like to proceed with this process? What do you think the next steps should be? Who do you see participating on the IEP team?”

Any special education needs parent who has ever had to deal with a school district in a similar way will not be surprised by the district’s answer.

On Dec. 9, 2008, the district answered that “[Because] you unilaterally placed her in Idaho, the District does not presently have an obligation to evaluate, convene IEP team meetings for, or otherwise serve Elizabeth under the IDEA. However . . . the District stands ready, willing, and able to evaluate and provide Elizabeth with a free appropriate public education upon her return to the District.”

After a subsequent email from Elizabeth’s mother saying that Elizabeth was “still under contract with Jefferson County for the 2008–09 school year,” the district responded again that “it would re-engage in the effort to provide an IEP for Elizabeth only if she returned to Jefferson County.”

Elizabeth’s parents did not return Elizabeth to Jefferson County because they had already gone through the experience that the district could not provide adequate special education needs services for Elizabeth in order for her to succeed academically.

By August 2009, Elizabeth’s parents had “requested an administrative due process hearing and reimbursement for Elizabeth’s placement at Innercept. … After conducting a five-day hearing in August 2009, the IHO issued a decision concluding the District failed to make a FAPE [Free Appropriate Public Education] available to Elizabeth in a timely manner prior to her enrollment at Innercept, that Innercept was a reimbursable placement under the IDEA, and Parents were entitled to reimbursement from the District for that enrollment."

In response to the administrative hearing officer’s ruling in favor of the parents, the district filed a federal lawsuit arguing that the district was not responsible for any payments under IDEA because Elizabeth’s attendance at Innercept was not based on providing Elizabeth with special education services as defined by IDEA.

In a Sept. 26, 2011, friend-of-the-court brief, the school district, joined by the National School Boards Association and the state school boards' groups for five of the six states that make up the 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, and Utah, (Wyoming is the sixth state in the circuit), appealed to the 10th Circuit court and argued that,

“Congress enacted the Individuals with Disabilities Education Act ('IDEA'), to provide children with disabilities a free appropriate public education ('FAPE'). ... The IDEA’s mandate that school districts educate children with disabilities does not additionally obligate schools to ameliorate a child’s disability or to cure an underlying medical condition. ... School districts should not be responsible for unilateral residential placements made for medical purposes; such responsibility is not only beyond the 3 range of their competence and funding but also exceeds the requirements of the IDEA."

On Nov. 23, 2011, with the support of the U.S. Department of Justice and U.S. Department of Education, Elizabeth’s parents appealed in their brief to the Tenth Circuit.

“This case raises important issues regarding the Individuals with Disabilities Education Act (the IDEA or the Act), … a civil rights statute that authorizes federal grants to help fund special education and related services for children with disabilities. The United States Department of Education administers and enforces the IDEA and is authorized to issue regulations, policy statements, and interpretive letters implementing the Act. …Upon referral from the Department of Education, the United States Department of Justice may bring actions in federal court to enforce the IDEA. … The United States thus has a strong interest in the proper judicial interpretation of the Act.”

In the Nov. 23, 2011, “STATEMENT OF THE CASE” it reads that,

“Congress first passed [the] IDEA as part of the Education of the Handicapped Act in 1970, 84 Stat. 175, and amended it substantially in the Education for All Handicapped Children Act of 1975, ... When the IDEA first became law ‘the majority of disabled children in America were either totally excluded from schools or sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out’.’ … With the Act, Congress sought to ‘reverse this history of neglect.’ ... The IDEA authorizes federal grants to States to help provide special education and related services to children with disabilities. … In order to receive federal funds, States must ensure that every child with a disability residing in the State has available to the child a ‘free appropriate public education’ (FAPE) – that is, the school must make available special education and related services designed to meet the child’s unique needs. … States must ensure that each local school district develops an ‘individualized education program’ (IEP) for each eligible child with disabilities. … The IEP must contain, among other things, a statement of the special education and related services that the child is to receive. … ‘Special education,’ as defined by the IDEA, ‘means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability,’ including instruction conducted in ‘hospitals,’ ‘institutions,’ and ‘other settings.’ … Under the Act, 'related services' broadly encompass all supportive services that may be ‘required to assist a child with a disability to benefit from special education,’ including ‘psychological services, ‘’social work services,’ ‘counseling services,’ and ‘medical services, except that such medical services shall be for diagnostic and evaluation purposes only.’ … Medical services that must be provided by a licensed physician are not considered required ‘related services.’ … ‘If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents.’ … The Act also provides that parents may secure reimbursement from the school district after placing the child in a private school or private setting if (a) the school district did not provide the child with a FAPE, (b) the private placement did provide the child a FAPE, and (c) the parents provided the school district timely notification that they were rejecting the proposed IEP and placing the child in a private placement.”

Elizabeth’s parents had always informed the school district in a “timely” manner of any course of action that they took on behalf of Elizabeth. Elizabeth was always a resident of Jefferson County. The school district’s disenrollment of Elizabeth without the parent consent did not relieve the district from having to provide special education services to Elizabeth.

According to the Nov. 23, 2011, brief, Elizabeth was “a child with very serious mental and emotional disorders” and “one of the most severely challenged children in terms of mental health of any they have dealt with.”

Elizabeth was “eligible for IDEA-related services because of her serious emotional disturbance [also called emotional disability] and her learning disability.”

Also according to the brief, the Jefferson County School District (JCSD) had acknowledged that “Elizabeth’s special education plan must, among other things, address her mental health needs. … Elizabeth’s parents and JCSD agreed that Elizabeth would attend a private school for children with significant learning disabilities and emotional and behavioral issues for her first two years of high school. While she began each of these years well and achieved many of her social, emotional, and academic goals, at the end of each year Elizabeth would ‘become over-stimulated’ and would have anger outbursts, disassociate, go into alternate realities for long periods of time, and was removed from the classroom. … Early in her third year at the private high school, the school staff was concerned that they could no longer meet Elizabeth’s serious needs, and discussed the possibility of residential treatment. … Elizabeth’s behavior at home also deteriorated and became threatening and violent, which her parents viewed as an escalation of her previous behavior. … Elizabeth’s parents then admitted her into the Aspen Institute for Behavior Assessment (Aspen) in Utah, ‘an acute inpatient psychiatric hospital designed for adolescents who are psychologically or neurologically compromised.’ … The Aspen staff found Elizabeth to be very seriously ‘psychologically and neurologically compromised’ (App.227) and found that she ‘exhibited early warning symptoms * * * [of] a severe psychotic disorder or schizophrenia’ (App.228). Aspen concluded that “Elizabeth’s emotional stability and behavior impact her ability to learn in the classroom, and that it is impossible to address her educational needs without addressing her mental health needs.’ … Aspen strongly recommended that Elizabeth be placed directly into a small residential program with ‘strong clinical support by licensed therapists, medication management by a psychiatrist, and an academic environment that could cater to her learning disability and emotional needs.”

In its decision on Dec. 28, 2012, the panel of the U.S. Court of Appeals for the 10th Circuit in Denver ruled 3-0 in favor for Elizabeth’s parents because Elizabeth’s learning disability needs were closely related to her mental health needs.

At Innercept, which is a state-accredited educational institution, Elizabeth had the chance to study towards her high school diploma. Elizabeth’s expressed desire to graduate was a clear indication for the Federal Court that Elizabeth was not just being “kept” in a residential facility but that her right for an education was protected by IDEA.

Elizabeth received three hours of classroom time in the morning and one hour to ninety minutes of homework during the evening. When Elizabeth was unable to function in the classroom due to her emotional disabilities, Innercept provided one-on-one instruction for Elizabeth.

According to the U.S. Court of Appeals for the 10th Circuit, the fact that Elizabeth wanted to get an education, that she wanted to graduate, and that Elizabeth’s special learning needs could be met when her emotional disability needs were taken care of were important factors in the Federal Court's final decision in favor for Elizabeth’s parents.

“The district court concluded these factors made the case distinguishable from those in which parents sought reimbursement for placement at psychiatric hospitals which merely happened to provide some educational services.”

The Federal Court also found that the school district’s "repeated statements that it had no obligation to [the student] under the IDEA because she was not physically present in Colorado" was not an issue with IDEA because IDEA does not make any “allowance for such a condition."

Under IDEA, which serves children ages 0 to 21, children who are intellectually able to receive an education have a right for an education. The discrepancy between a child’s intellectual ability and a child’s academic performance is a crucial factor in determining whether a child qualifies for IDEA or not.

In its concluding statement, the U.S. Court of Appeals for the 10th Circuit emphasizes that “Under IDEA, public school officials must evaluate the disabled students they serve and offer them individualized plans ‘reasonably calculated to enable [them] to receive educational benefits'."

If a student is able to learn but “the public school fails to provide some meaningful educational benefit to the child, it must finance a private placement to get the job done. … all of our sister circuits agree a private placement under IDEA is permissible only if it is necessary to supply the child with a meaningful educational benefit the public school has proven unable or unwilling to supply — not to address purely social, emotional, or medical needs.”

“This conclusion unsurprisingly aligns with Congress’s stated purpose in enacting IDEA: its wish to ensure public schools address the ‘educational needs’ of ‘children with disabilities,’ not to force public schools to displace all other social service agencies and become the providers of first resort of all medical, emotional, and social care and instruction.”

In its conclusion, the Federal Court is addressing a topic that needs much more discussion in the United States.

With the ever-increasing pressure and criticism on schools to feed children, to provide after school care, and to provide medical needs, how much funding and time is left to educate children?

Schools should be able to focus on providing an education for children. If a child’s education can be achieved in a public school setting, then a school can do its job. However, when schools have to spend more time and funding to assure a child’s emotional needs, nutritional needs, and babysitting needs (which used to be a parent’s job), it might be time to reevaluate how much a school can and cannot do.

It appears that in Elizabeth’s case, the school district should have been grateful to “outsource” Elizabeth’s special learning needs in order to meet other children’s needs.

It would have been a win-win situation for Elizabeth, her parents, the school, and the other children of the school.

One wonders if the timing of the U.S. Court of Appeals for the 10th Circuit is really a coincident or if “fate” is sending a message.

On Dec. 14, 2012, Adam Lanza killed 20 innocent children and 7 adults during the Connecticut school shooting. According to several media sources, Adam Lanza had Asperger’s syndrome, a form of autism. Based on Adam Lanza’s sophisticated use of computers and college attendance at the age of 16, there is no doubt that Adam Lanza had the intellectual ability to have qualified for special education services under IDEA.

What is of concern, however, is that Adam Lanza’s public school tried (or had) to meet all of Adam Lanza’s emotional, social, and educational needs.

According to a Dec. 17, 2012, Wall Street Journal report, “Not long into his freshman year, Adam Lanza caught the attention of Newtown High School staff members, who assigned him a high-school psychologist, while teachers, counselors and security officers helped monitor the skinny, socially awkward teen, according to a former school official. Their fear wasn't that he was dangerous. ‘It was completely the opposite,’ said Richard J. Novia, the director of security at Newtown School District at the time in 2007. ‘At that point in his life, he posed no threat to anyone else. We were worried about him being the victim or that he could hurt himself’."

It appears something does not match up in today’s schools. On the one hand, classrooms are overcrowded, the educational system is being criticized for failing students, and the funding of more and more educational programs are being cut.

On the other hand, one student like Adam Lanza gets the energy and time of a psychologist, teachers, counselors, and security officers.

Unlike Adam Lanza’s parents, Peter Lanza and Nancy Lanza, Elizabeth’s parents took responsibility for their child’s educational and emotional needs and they ended up fighting the school district in court for over 10 years.

Most successful businesses in the United States “outsource” jobs that can be better provided by other agencies. Maybe it is time to bring some of that business sense into the public school system; not only to grant children the special education needs that they deserve under IDEA and to save money, but, most importantly, to save lives.

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