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Special Education e-News
http://www.wrightslaw.com/law/art/forestgrove.ta.analysis.htm
Give ground but don't give up, attorney tells schools after Forest Grove
Districts may not like the Supreme Court's June 22 decision in a private placement case from Oregon. Forest Grove Sch. Dist. v. T.A., 109 LRP 36046 (U.S. 2009). In that case, the Court said parents are not barred from seeking reimbursement for the cost of private tuition just because their children did not previously receive Special Education. The opinion means schools will be less certain about their obligations toward such students, said Kathleen Mehfoud, an attorney at Reed Smithin Richmond, Va. But that doesn't mean schools should simply assent to private and especially residential placements, she said. Rather, schools should embrace the nuanced, case-by-case approach the Court now requires in such situations -- a process called "balancing the equities" -- and use it to argue for a more inclusive approach, she said. "Forest Grove makes it clear that school districts should be arguing equitable considerations in tuition reimbursement cases," Mehfoud said. "They shouldn't just focus on the appropriateness of the public school program; they also need to focus on the extraordinary cost of the private school program [and] whether there are less expensive alternatives." For example, many students with a profile like T.A., the student in Forest Grove, "could be adequately served in a public day school program," she said. In such a situation, districts "shouldn't have to pay the full cost of a residential program, because I think that's overkill," she said. If the hearing officer or court agrees, "then the judge could say it's a shared-cost situation," Mehfoud said. This applies even if parents use the IDEA's stay-put provision to keep their child in the residential setting, as T.A.'s parents did, she said. "The private residential school will become stay-put," she said. But if a district can show that less drastic, more inclusive measures would suffice, it could argue that its liabilities should be limited to the cost of that option, Mehfoud said. As a result, a district might owe only $30,000, say, instead of $100,000, she said.
Districts can use stabilization funds to meet Special Education MOE
In a documentdated July 1, OCR says districts, like states, can also use the State Fiscal Stabilization Fund -- part of the American Recovery and Reinvestment Act -- to meet their maintenance-of-effort requirements under the IDEA. The SFSF includes a $5 billion competitive grant program and two formula grants -- $39.5 billion for education and $8.8 billion for government services. Only the formula grants can be used to meet MOE under the IDEA, and the rules for states and districts to use the education formula grant are slightly different. For example, states must set aside money distributed to LEAs on the basis of their share of Title I, Part A funding under the Elementary and Secondary Education Act. Those are the funds left over after restoring state education spending to its FY 2008 or FY 2009 level, whichever is higher, and they cannot be used to meet state-level MOE for Special Education because, by definition, that purpose has already been accomplished. Next, states must meet five criteria, including maintaining data that show a state meets the SFSF's own MOE requirement, set at the FY 2006 level. States may not reduce the percentage of state revenues used for Special Education and for education in general from one year to the next. If it meets the criteria, a state is deemed to have received prior approval to use the education formula grants to maintain state-level MOE under the IDEA. States may also use the government services grants to maintain their special ed MOE, provided they meet the same criteria. Districts may use any SFSF formula grants -- including funds distributed on the basis of their Title I, Part A allocations -- to meet their Special Education MOE requirements, OSEP says. Districts may not use funds already claimed for this purpose by the state, however, unless they calculate MOE using a combination of state and local dollars. Districts are considered to have prior approval to use stabilization funds to meet their Special Education MOE requirements if they keep track of which dollars are claimed by whom in this regard and if the state meets its own Special Education MOE requirements, OSEP says.
Recent Decisions
Administrative order by state ED establishes teen's stay-put placement
The U.S. District Court, District of Maine denied a parent's request to place a teenager with multiple disabilities in a public high school while her IEP challenge was pending. The court ruled that the public elementary school recommended in an order issued by the state Education Departmen twas the student's stay-put placement. Millay ex rel. Y.R.M. v. Surry Sch. Dep't, 51 IDELR 159 (D. Me. 2008).
Timing of private placement relieves parent of duty to exhaust remedies
The fact that the parent of an 11-year-old boy with ADHD did not address tuition reimbursement in her due process complaint did not stop her from seeking reimbursement in federal court. Noting that the parent did not enroll the student in private school until after the hearing officer issued his decision, the District Court held that she did not need to exhaust her administrative remedies. J.P.E.H. by Campbell v. Hooksett Sch. Dist., 51 IDELR 164 (D.N.H. 2008). ~*~
