The topic of tuition reimbursement awards is one of particular importance to impartial hearing officers. A recent opinion, J.T. v. Department of Education, Civil No. 11-00612, 2018 WL 2449190, 72 IDELR 95 (D. Haw. May 31, 2018), serves as a good reminder of how the second and third prongs of the Burlington/Carter test [1] should be applied (even in States were the decision is not binding). The decision is the remand of J.T. v. Department of Education, 695 F. App’x 227, 70 IDELR 144 (9th Cir. 2017). The case concerned a 12-year-old boy with sensory and developmental problems who received special education services and in his second and third grades performed at or above grade level in math, but displayed limited reading comprehension and writing skills. An independent evaluation showed average to borderline verbal-cognitive abilities, a possible auditory processing disturbance, and the basis for diagnosing ADHD and a mixed receptive-expressive language disorder. The parents had concern that his behavioral issues were not being addressed at the public school and that the proposed IEP for the student did not address the needs found in the independent evaluation. They also complained about lack of notice and exclusion from decision making. The parents placed the student in a private school and requested tuition reimbursement. The hearing officer decision found that exclusion of the parent from in IEP meeting denied free, appropriate public education, but denied reimbursement, upholding the IEP and finding a failure by the parent to cooperate in the evaluation process. The decision did conditionally require compensatory speech-language services for the school system’s failure to conduct an evaluation the previous year.

In the ruling of the district court that went up on appeal (2012 WL 1995274 (D. Haw. May 31, 2012)), the court held that the hearing officer incorrectly ruled that the public school offered the student free, appropriate public education. But the court also ruled that the parent’s tuition reimbursement request was not timely, and that the private placement chosen by the parents was not appropriate. The court of appeals, however, declared that the 180-day deadline in (Hawaii) State law for requesting reimbursement began to run on the date of official enrollment at the private school, rather than when the student first attended the school for assessment purposes, and that under that interpretation the parents met the deadline. The court of appeals further ruled that the district court abused its discretion in deciding that the private placement was inappropriate, and in particular that the district court “collapsed the inquiry into whether a placement is ‘proper’ with its subsequent duty to weigh ‘equitable considerations.’” 695 F. App’x at 228. The district court had concluded that the private school was not appropriate because the student regressed in a number of areas while attending the school. The court of appeals stated that lack of progress is an equitable consideration with regard to the ultimate decision about reimbursement, but that for the determination whether the parental placement was proper, “the district court need only consider whether, at the time of enrollment, the unilateral placement was ‘reasonably calculated’ to meet the student’s needs. . . . For this inquiry, relying on hindsight is inappropriate.” Id.

In the remand decision, the district court reviewed the record and found that the goals put in place by the private school were designed to address both the mental health deficits the student displayed during the diagnostic period and other problems observed in the student’s performance. Therefore, the unilateral placement was reasonably calculated to meet the student’s needs, so it was a proper placement at the time of enrollment. 2018 WL 2449190, at *4. The court then said it needed to “weigh equitable considerations to determine whether, and how much, reimbursement is appropriate.” Id. (internal quotations omitted). Interpreting Forest Grove School District v. T.A., 557 U.S. 230, 247 (2009), the court said that all relevant factors, not just those mentioned in 20 U.S.C. § 1412(a)(10)(C)(ii), should be considered. These factors include: “notice provided to the school district prior to unilateral private placement; the existence of other, more suitable placements; the effort expended by the parents in securing alternative placements; the general cooperative or uncooperative position of the school district; and whether the student’s parents chose the private placement for reasons unrelated to the student’s disabilities,” id. at *5 (internal quotations omitted), as well as the student’s lack of progress at the private school.

The denial of FAPE and the fact the private placement was proper weighed heavily in favor of reimbursement, but the failure of the parent to cooperate with scheduling the district’s speech-language assessment and school services coordinator observation weighed against, although that failure needed to be balanced with the school system’s neglect to offer a mental health assessment. The private placement entailed mental health services that were more intensive than the student may have needed and included enrichment activities that may not have been necessary, such as mixed martial arts lessons and dolphin experiences. Initial grouping of the student with younger peers caused him difficulties, and the lack of contemporaneous documentation of progress militated against full reimbursement, in light of evidence that the student did not perform significantly better academically than he did at the public school and developed some behavior problems not present when he was in public school. Ultimately, the court awarded tuition reimbursement at a rate of 25%, making the award under § 1415(i)(2)(C)(iii) for the period from July 6, 2010 to November 10, 2010 and under § 1412(a)(10)(C)(ii) for the period from November 10, 2010 to July 31, 2012, for a total award of $73,325.08.

The case reinforces the proposition articulated by the court of appeals, that under the second prong of the Burlington/Carter test the propriety of the parental placement is to be evaluated prospectively on the basis of the content of its program in relation to the child’s needs. On the other hand, lack of progress at the private placement is a factor, though perhaps a less important factor than some of the others, in determining the amount of reimbursement to be awarded under the third prong.  And, finally, note the expansive range of considerations that should be weighed in determining proper reimbursement amounts.

[1] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 103 LRP 37667 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 20 IDELR 532 (1993).