Doe v. Newton Public Schools, 48 F.4th 42, 81 IDELR 211 (1st Cir. Sept. 2, 2022), is about the obligation of a district under IDEA to provide a residential placement in order to meet the student’s needs. At due process, the parents lost on their claim that their son had been denied FAPE, but they prevailed in the district court and won a reimbursement order for a unilateral residential placement, although related travel and boarding expenses were denied. The parties cross-appealed and the court of appeals affirmed the district court’s judgment.

Newton identified the student as eligible under IDEA starting in kindergarten. His primary disability was later determined to be autism spectrum disorder, with a secondary disability of generalized emotional disorder. His March 16, 2016, IEP, which applied to his tenth-grade year, called for consultation by a speech language pathologist for social pragmatics once a month for 30 minutes, and speech language pathologist services once a week for 15 minutes, as well as testing, classroom, and assignment accommodations. He reported difficulties keeping up with his classes, which included two honors-level courses, during tenth grade, and his teachers expressed concern over his grades and emotional presentation. At a March 8, 2017, IEP meeting the student learned his teachers would not recommend him for honors level classes, which caused him to be upset. His March 2017 IEP, which emerged from a subsequent meeting, offered services similar to those provided in the past, with some additional speech and social supports. Since his parents did not act to accept the IEP, the services in the March 2016 IEP stayed in effect. At the end of that school year, the parents learned of the student’s plan to kill himself at school, and informed his guidance counselor. An evaluation diagnosed the student with major depressive disorder, though without an imminent risk of self-harm. At school, he lost out on an election for leadership in the school’s model UN and received threats over a report he made of potential cheating by other students, further distressing him. An amendment to his proposed IEP called for academic support with a special education teacher, but no counseling or therapy services. After discovering during the summer that the student had another plan for suicide, the parents had student hospitalized. The parents informed the school of the hospitalization and said that the student strenuously opposed reenrolling at his high school in the fall. They rejected the proposed amended March 2017 IEP, and told the school that he required an appropriate therapeutic placement.

At an August 31, 2017, meeting, the parents presented an evaluation recommending significant therapeutic school supports. The public school proposed an IEP that day to place him at his current high school in an educational program that provided access to a social worker for counseling on a daily, as-needed basis, plus two counseling sessions each week. He would also receive increased speech and language services, and academic support. The parents rejected the August 2017 IEP and informed the school they would place the student at a private, residential school in Connecticut called Franklin Academy; they had in fact already accepted an offer of enrollment at Franklin. The public school rejected their request for reimbursement and proposed a 45-day extended evaluation in a therapeutic day program, which the parents rejected. Another evaluation obtained by the parents called strongly for residential placement. Subsequent IEPs in April 2018 and March 2019 called for placement of the student in a therapeutic day school. The parents filed for due process on January 3, 2019. In reversing the due process decision adverse to the parents, the district court held that the IEPs from August 2017 through March 2019 did not offer FAPE, while the Franklin placement was appropriate. But the district court denied reimbursement for residential expenses, that is, boarding and travel, for the two relevant years on the ground that residential placement was not needed and day placement would have been sufficient.

In affirming, the court of appeals said that the district court gave due weight to the hearing officer’s findings, but permissibly concluded that although the public school’s program would have provided some therapeutic benefit, placement of the student in a full-inclusion model at the public school would not provide FAPE. The outside evaluations stressed the need for a therapeutic school to ensure educational gains, as well as to provide safety in light of the suicidal ideation. The outside evaluators provided ongoing care for the student, while the public school’s evaluator had only one session with him. The district court did not improperly rely on the later IEPs recommending therapeutic school in invalidating the August 2017 IEP, but instead found sufficient evidence available at the time of the 2017 IEP to conclude it did not offer FAPE.

On the reimbursement issue, the court of appeals pointed out that the district court rejected the 2018 and 2019 IEPs on the ground that removing the student from the then-current environment at Franklin would cause emotional and social disruption, further noting that the public school had enough information to reach the same conclusion under a snapshot-in-time approach. The unique needs of the student extended the need for keeping the student at the placement into twelfth grade. The district court correctly held that the least restrictive environment principle does not require the parents to place the student in the LRE if the IEP does not offer FAPE. Rejecting the cross-appeal, the court of appeals affirmed the denial of reimbursement for residential services, noting that at the time the parents made the residential placement, the parents’ evaluators had not yet recommended residential placement. The court deferred to the district court in rejecting the later evaluation’s call for residential placement, noting that it was speculative. The requirement that reimbursement be limited to what is reasonable meant that the district court did not let an inapplicable LRE requirement in by the back door when it rejected residential reimbursement.

The Doe case is illustrative of an ever-increasing attention to the specific facts of the case, down to the nuances of evaluators’ recommendations and the degree of familiarity they have with the student, in making FAPE determinations in these cases. The lesson for independent hearing officers is that it is important to make sure that evaluations and all other evidence of student progress and problems be weighed carefully—and explicitly—in deciding whether an IEP offers FAPE, whether a private placement is appropriate, and whether that private placement must be residential to meet the student’s needs under IDEA.