Jane DOE, John Doe, by and through his parent Jane Doe, Plaintiffs-Appellees-Cross-Appellants, v. EAST LYME BOARD OF EDUCATION, Defendant-Appellant-Cross-Appellee, Department of Education, Connecticut State, Defendant.
Docket Nos. 14-1261-cv(L), 14-1638-cv(XAP).
United States Court of Appeals, Second Circuit.
Argued: March 13, 2015, Decided: June 26, 2015.
790 F.3d 440
Sheldon D. Myers, Kainen, Escalera & McHale, P.C., Hartford, CT, for Defendant-Appellant-Cross-Appellee.
Before: JACOBS and LOHIER, Circuit Judges, and SHARPE, District Judge.*
DENNIS JACOBS, Circuit Judge:
John Doe (the “Student“) has autism and requires special education services. He and his mother, Jane Doe (the “Parent“), reside within the East Lyme Public School District (the “District“) under the jurisdiction of the East Lyme Board of Education (the “Board“). Up through the 2008-2009 school year, the Board and the Parent agreed on individualized education plans (“IEPs“) setting forth special education services, consisting of school placement and additional related services, that the Board would provide or fund.
Following disagreements over the IEP for 2009-2010, the Parent placed the Student in a private school outside the District, and continued to privately obtain some (but not all) of the related services previously funded by the Board. The Board refused to pay for the private school or any related services on the ground that it ceased to be responsible for the Student once he was enrolled outside the District.
The Parent brought suit under the Individuals with Disabilities Education Act (“IDEA“),
The district court dismissed these claims. As to 2009-2010, the court ruled that the IEP provided the Student with a FAPE. As to 2010-2011 (and subsequent school years), the court ruled that the Board violated the IDEA by failing to offer any IEPs, but that the Parent was not entitled to relief because the private school in which she enrolled the Student was an inappropriate placement.
The court did award the Parent some relief. Citing the stay-put provision of the IDEA,
We affirm the judgment in most respects, but vacate the award of reimbursement and remand the case for further proceedings. We hold that the appropriate equitable relief for a stay-put violation is reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund, not the (lesser) value of services the Parent was able to afford. We further hold that an educational agency‘s obligation to maintain stay-put placement is triggered when an administrative due process proceeding is initiated, not when an impasse is reached.
BACKGROUND
The Student was nine years old at the beginning of the 2009-2010 school year.
The Student attended public school in the District until December 2006, when the Board and the Parent agreed on publicly-funded placement at Hope Academy, a private school. In 2008, dissatisfied with the Student‘s progress at Hope Academy, the Parent placed him at Solomon Schechter Academy (“Solomon“) in New London, Connecticut. Solomon is a private religious school that provides no specialized instruction to students with disabilities. The Parent and the Board agreed that the Parent would pay the tuition at Solomon, while the Board would fund additional related services, such as specialized reading instruction and speech therapy, which would be delivered by private providers outside the classroom.
Accordingly, the Board issued an IEP in December 2008 (the “2008-2009 IEP“), which provided that the Parent would pay for tuition at Solomon, while the Board would pay for the following related services: Orton-Gillingham reading instruction (5 hours/week), speech therapy (2.5 hours/week), and occupational/physical therapy (1.5 hours/week). In February, the parties amended the IEP to increase speech therapy to 3 hours per week. As discussed in greater detail below, it is this amended 2008-2009 IEP that furnishes the “then-current educational placement” for stay-put purposes.
On June 17, 2009, the Parent met with Board representatives to discuss the 2009-2010 placement. Dr. Corinne Berglund, the Board‘s Director of Special Education, advised the Parent that the Board would not pay for tuition at Solomon and suggested that the Student be enrolled instead at Niantic Center School (“Niantic“), a public school in the District. The parties reached an impasse. A month later, the Board issued an IEP (the “2009-2010 IEP“) placing the Student at Niantic or his local elementary school and offering a program that included: a case manager, “code emphasis reading that incorporates Orton-Gillingham principles” (50 minutes/day), speech therapy (2.5 hours/week), occupational therapy (1 hour/week), and physical therapy (20 minutes/week). The Parent rejected the IEP, advised the Board that she would keep the Student at Solomon, and conveyed her expectation that the Board would continue paying for related services. The demands for related services were based on recommendations by the Student‘s treating clinician, Dr. Robert Kemper.
The Student continued to attend Solomon during the 2009-2010 school year, and was regularly pulled out of the classroom to receive special education services (which Solomon did not offer) from private providers. The Parent also arranged for the Student to receive some instruction over the summer. The Parent absorbed all of these educational expenses.
In August 2010, the Parent advised the Board that, unless she received a satisfactory IEP, she would continue the enrollment at Solomon for 2010-2011, and demanded reimbursement of her expenses. The Board refused, on the ground that the Student‘s enrollment at Solomon terminated the Board‘s obligations under the IDEA.
On April 27, 2010, the Parent filed an administrative due process complaint, which she temporarily withdrew, but then refiled, in September 2010. See
The administrative hearing officer ruled in favor of the Board. The officer found (inter alia) that the Board had offered a FAPE during the relevant school years, and that the lack of special education services at Solomon made it an inappropriate placement. Accordingly, the officer awarded no reimbursement. The Parent then sought judicial review in the United States District Court for the District of Connecticut.2 See
The parties cross-moved for summary judgment on the basis of the administrative record. The district court (Arterton, J.) ruled that as to 2009-2010, the Board offered the Student a FAPE, and that though the Board failed to propose an IEP for 2010-2011 (and the subsequent school years), the Parent was not entitled to relief because Solomon was an inappropriate placement.3
However, the court concluded that the Board violated the stay-put provision of the IDEA,
The parties cross-appeal. The Board argues (inter alia) that the Student‘s enrollment at Solomon terminated its obligations under the IDEA altogether, that it prevailed on the FAPE claim, and that liability for a stay-put violation is conditional on the Parent‘s prevailing on the FAPE claim. The Parent argues (inter alia) that the Board failed to provide a FAPE, and that Solomon was an appropriate placement. The parties also contest the award of reimbursement on a number of grounds. Most significantly, the Board argues that the court improperly awarded reimbursement for services rendered before the Parent initiated administrative due process proceedings, while the Parent argues that the court should have awarded relief for the full value of the related services, not just the (lesser) value of services she was able to afford.
DISCUSSION
The Parent asserts two conceptually distinct claims: (I) a denial-of-FAPE claim based on the inadequacy of the 2009-2010 IEP, the Board‘s failure to issue IEPs for later school years, and the appropriateness of Solomon as an educational placement, see
We review de novo the district court‘s rulings as to liability under the IDEA. Lillbask ex rel. Mauclaire v. Conn. Dep‘t of Educ., 397 F.3d 77, 83 (2d Cir. 2005). We review for abuse of discretion the fashioning of relief under
I
“Under the IDEA, federal money is available to assist state and local agencies in educating handicapped children, provided that the recipients of those funds comply with various provisions of the Act.” Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 481 (2d Cir. 2002) (internal quotation marks omitted). Through its state and local educational agencies,4 a participating state must make “[a] free appropriate public education ... available to all children with disabilities residing in the State.”
“If a state fails in its obligation to provide a free appropriate public education to a handicapped child, the parents may enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). Private placement is reimbursable only if “such placement, rather than a proposed IEP, is proper under the Act.” Burlington, 471 U.S. at 369; see also
“We undertake a three-step process to determine whether parents are entitled to tuition reimbursement.” T.Y. v. N.Y.C. Dep‘t of Educ., 584 F.3d 412, 417 (2d Cir. 2009); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).6 The first two steps concern the adequacy of the IEP: “whether the school district has complied with the IDEA‘S procedural requirements” and “whether the IEP is reasonably calculated to enable the child to receive educational benefits.” T.Y., 584 F.3d at 417 (internal quotation marks omitted). The third step
A
The Parent argues that the Student was denied a FAPE for the 2009-2010 school year because the IEP issued by the Board that year was deficient both procedurally and substantively. We disagree.
1
The premise of the procedural claim is that the Parent was deprived of the right to participate in the development of the 2009-2010 IEP, because it was issued after the last meeting at which she was present.
Under the IDEA, the “IEP Team” responsible for developing an IEP must include the child‘s parents.7
The Parent‘s right of participation was not violated. She fully participated in the June 17, 2009 meeting of the IEP Team at which the 2009-2010 placement was discussed. Nothing in the record suggests that the IEP Team ever met without her presence.
The argument comes down to whether the Board could, after the meeting, issue an IEP without the Parent being physically present. We conclude that it could. The right of participation encompasses the right to offer input and to have that input considered; it does not entail a right to be physically present throughout the agency‘s own decisional process. See
2
The Parent‘s substantive challenge to the adequacy of the 2009-2010
The 2009-2010 IEP offered placement at a public school (Niantic) staffed with a special education teacher, as well as: a case manager, “code emphasis reading that incorporates Orton-Gillingham principles” (50 minutes/day), speech therapy (2.5 hours/week), occupational therapy (1 hour/week), and physical therapy (20 minutes/week). The administrative hearing officer concluded that this combination of placement and services was substantively adequate. We see no basis in the record to reject that conclusion.
*
For the foregoing reasons, the Board provided the Student with a FAPE for the 2009-2010 school year.
B
The Board refused to propose an IEP for the 2010-2011 school year or any of the subsequent school years.8 The district court concluded that this amounted to a denial of a FAPE, but that in any event the Parent was entitled to no relief because the Student‘s enrollment at Solomon was itself inappropriate. We agree.
1
The Board was required to offer the Student an IEP for 2010-2011 and each of the following school years. The IDEA requires that “[a]t the beginning of each school year, each local educational agency, State educational agency, or other State agency ... shall have in effect, for each child with a disability in the agency‘s jurisdiction, an individualized education program.”
The Board argues that the Student‘s enrollment at Solomon, outside of the District‘s borders, terminated any obligations it owed under the IDEA. That is incorrect. A local educational agency‘s duty to provide a FAPE is not ended by enrollment of a resident child in a private school outside the district. True, the educational agency in the jurisdiction where the private school is located may have its own obligations, most notably, the obligation to conduct “child find.” See
The IDEA thus provides that a local educational agency is relieved of its obligation to pay for a resident child‘s private school tuition “if that agency made a free appropriate public education available to the child and the parents elected to place the child” elsewhere.
2
The Board‘s failure to provide a FAPE notwithstanding, the Parent is entitled to relief only if she meets “the burden of demonstrating that [the] private placement was appropriate.” Gagliardo, 489 F.3d at 112. Generally, “the same considerations and criteria that apply in determining whether the School District‘s placement is appropriate should be considered in determining the appropriateness of the parents’ placement“; accordingly, the private placement must be “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364 (internal quotation marks omitted).
The administrative hearing officer found that the placement at Solomon was inappropriate because that school was not tailored to meet the Student‘s special needs, which had to be addressed by outside providers. True, “[a]n appropriate private placement need not meet state education standards or requirements” or “provide certified special education teachers or an IEP for the disabled student.” Frank G., 459 F.3d at 364; see also Carter, 510 U.S. at 13. However, “assessment of educational progress is a type of judgment for which the district court should defer to the [administrative hearing officer‘s] educational experience” Frank G., 459 F.3d at 367 (internal quotation marks omitted).
We see no reason to overturn the administrative officer‘s finding, which is
*
In summary: the Board denied the Student a FAPE during the 2010-2011 school year (and subsequent school years); the district court nevertheless properly awarded no relief as to that claim because enrollment at Solomon was itself inappropriate for the Student; accordingly, and in light of our conclusion that the Student received a FAPE for 2009-2010, we affirm the district court‘s grant of summary judgment in the Board‘s favor on the FAPE claim.
We turn to the stay-put claim, on which the Parent prevailed before the district court.
II
The stay-put provision of the IDEA provides that “during the pendency of any proceedings conducted pursuant to this section, unless the State or local edu-
cational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.”
A
To determine a child‘s “then-current educational placement,” a court typically looks to: (1) “the placement described in the child‘s most recently implemented IEP“; (2) “the operative placement actually functioning at the time when the stay put provision of the IDEA was invoked“; or (3) “the placement at the time of the previously implemented IEP.” Mackey ex rel. Thomas M. v. Bd. of Educ. For Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004) (internal quotation marks, ellipsis, and brackets omitted).11
As the district court determined, the Student‘s stay-put placement was the placement described in the 2008-2009 IEP (as amended in February 2009), which was both the most recently implemented IEP and the last one agreed upon by the parties. It is undisputed that the Board refused to pay for the services described in that IEP during the pendency of administrative and judicial proceedings. The Board thus violated the stay-put provision.
First, the Board argues that the Parent should not be permitted to obtain reimbursement for tuition at Solomon by unilaterally enrolling the Student there. But the stay-put claim does not seek reimbursement of Solomon tuition; it seeks relief for the related services.
Second, the Board argues that the related services it agreed to fund did not form part of the Student‘s educational placement for 2008-2009. To the contrary, the IDEA defines “free appropriate public education” to include “special education and related services,”
Third, the Board argues that the 2008-2009 IEP cannot be a stay-put placement because the parties intended it to be a temporary arrangement. That is beside the point. The Board‘s obligation to fund stay-put placement is rooted in statute, not contract. The parties’ intent as to the duration of the IEP (or the February 2009 amendment to it) therefore does not matter.
Finally, the Board contends that it cannot be held liable for a stay-put violation if it in fact provided a FAPE. Not so. “A claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP.” Mackey, 386 F.3d at 160. “Section 1415(j) represents Congress’ policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved.” Id. (citation, internal quotation marks, and brackets omitted); see also T.M., 752 F.3d at 170. In short, the stay-put provision means that an educational agency is required to maintain the status quo placement even if the child would otherwise have no substantive right to it. See Mackey, 386 F.3d at 165.
The Supreme Court‘s decision in Burlington is not to the contrary.13 Burlington observed that “parents who unilaterally change their child‘s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk” because “[i]f the courts ultimately determine that the IEP proposed by the school officials was appropriate, the parents would be barred from obtaining reim-
Burlington stands for an unremarkable proposition: when a parent rejects a stay-put placement by unilaterally placing the child elsewhere, retroactive reimbursement for the unilateral placement is available, if at all, only through a FAPE claim. See T.M., 752 F.3d at 172 (“When [the child‘s] parents rejected [the agency‘s] offer to provide pendency services directly for the 2011-2012 year, they took responsibility for the cost of obtaining those services from private providers.” (citing Burlington, 471 U.S. at 373-74)).
We are not confronted with a Burlington scenario. Under the 2008-2009 IEP, the Student was to attend Solomon at parental expense and to receive related services at the expense of the Board. While paying for the related services herself, the Parent maintained that continuous placement during the pendency of this litigation. And far from declining the protection of stay-put, the Parent actively invoked it. At the June 2009 IEP Team meeting, she repeatedly demanded that the Board continue to provide stay-put placement:
You‘re proposing a change of placement. There was an IEP from East Lyme, saying he‘s here. Now you‘re changing the placement. It violates Stay Put. He‘s supposed to stay here until we have a proceeding....
What I‘m saying is you‘re violating my Stay Put rights ...
How is this not in violation?
Tr. of Planning and Placement Team Meeting, at 6:14-17, 10:4-5, 11:1-2 (June 17, 2009).
For the foregoing reasons, we affirm the district court‘s grant of summary judgment in favor of the Parent on the stay-put claim.
B
We turn now to the issue of relief. In any action brought under the IDEA, the court “shall grant such relief as the court determines is appropriate.”
The district court ordered the Board to reimburse the Parent for her out-of-pocket expenses on related services incurred since June 17, 2009, when the parties reached an impasse about the Student‘s placement. Both parties contest this relief.
1
Some of the competing arguments merit little discussion.
The Parent argues that she should be reimbursed for the “extended school year” services that she obtained in the summertime. But the amended 2008-2009 IEP makes no mention of such services. The Parent argues that they should be extrapolated from the term-time services in the 2008-2009 IEP or from the summertime services set forth in the IEP for 2007-2008. We disagree. The 2008-2009 IEP left the sections for summertime services blank; and the 2007-2008 IEP was not the one most recently implemented or last agreed upon.
The Board argues that the Parent was required to administratively exhaust her stay-put claim. The Board is wrong: “an action alleging violation of the stay-put provision falls within one, if not more, of the enumerated exceptions to” the IDEA‘s exhaustion requirement. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 199 (2d Cir. 2002). Since the purpose of the stay-put provision is to keep the child in an existing placement until all proceedings—administrative and judicial—have run their course, there is no evident reason why administrative proceedings should have to be recommenced to that end. Id. Applying the exhaustion requirement to stay-put claims would create a loop of marathon proceedings, since each new round of administrative proceedings would itself be subject to a fresh round of judicial review. See
2
The Board and the Parent each raise one meritorious objection to the district court‘s award of relief.
*
The district court held that the stay-put obligation was triggered on June 17, 2009, when the parties reached an impasse. The Board argues that any such obligation was triggered when the Parent initiated administrative due process proceedings on April 27, 2010.
The plain language of the stay-put provision supports the Board‘s position. The provision governs the obligations of parties during “the pendency of any proceedings conducted pursuant to this section,”
The district court appears to have followed our summary order in A.S. ex rel. P.B.S. v. Bd. of Educ. for Town of W. Hartford, 47 Fed.Appx. 615, 616 n. 2 (2d Cir. 2002) (summary order) (“Under the IDEA, a stay put is a procedural right that is activated as soon as the [IEP Team] reaches an impasse.” (internal quotation marks omitted)). A.S., which is not precedential, is also distinguishable. The plaintiff filed a due process complaint as soon as the parties reached their impasse, so the filing coincided with the impasse. Id.
*
The Parent argues that the district court abused its discretion by limiting the award of relief to her out-of-pocket expenses instead of awarding the full value of services that the Board should have provided. We agree that in this case the award of less than the full value of stay-put services was inappropriate, given the purposes of the IDEA: Burlington, 471 U.S. at 369.
The award in this case was calculated in a way that would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation. If it turns out in the end that the parent was able to finance all the services, the agency would simply pay what it should have paid in the first place. Cf. Burlington, 471 U.S. at 370-71 (“Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance.“). On the other hand, if the parent cannot afford to finance all or any services, the agency gets to pay less than what it should have, or nothing—and, more important, less than what was needed for the child‘s benefit. Moreover, such an arrangement would make the stay-put obligation contingent on the means of a child‘s family—a legally irrelevant variable. Cf. E.M. v. New York City Dep‘t of Educ., 758 F.3d 442, 452 (2d Cir. 2014) (“The IDEA promises a free appropriate public education to disabled children without regard to their families’ financial status.“); Miener By & Through Miener v. State of Mo., 800 F.2d 749, 753 (8th Cir. 1986) (“We are confident that Congress did not intend the child‘s entitlement to a free education to turn upon her parent‘s ability to ‘front’ its costs.“).
Reimbursement is a remedy limited to what has been paid. And an award of damages to make up the difference is impermissible under the IDEA. Polera, 288 F.3d at 486. There is, however, another remedy: compensatory education. “Compensatory education is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child‘s eligibility as a remedy for any earlier deprivations in the child‘s education.”15 Somoza v. N.Y.C. Dep‘t of Educ., 538 F.3d 106, 109 n. 2 (2d Cir. 2008) (internal quotation marks omitted); see also P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008).
Although we have typically endorsed compensatory education as a remedy for substantive FAPE claims, see, e.g., P., 546 F.3d at 123, there is no reason why the remedy should not be equally available for stay-put violations. We therefore conclude that when an educational agency has violated the stay-put provision, compensatory education may—and generally should—be awarded to make up for any appreciable difference between the full value of stay-put services owed and the (reimbursable) services the
In light of the foregoing, we vacate the district court‘s award of relief as to the Parent‘s stay-put claim. On remand, the district court should: calculate the total value of the related services specified in the amended 2008-2009 IEP for the period from April 27, 2010,16 to the (as yet undetermined) date of the new final judgment, see
We leave the mechanics of structuring the compensatory education award to the district court‘s sound equitable discretion, although the court may wish to consult remedies that we have endorsed in the past. See Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 Fed.Appx. 411, 415 (2d Cir. 2010) (summary order). Given the possibility that the Student‘s educational needs have changed since the commencement of proceedings, we leave to the district court whether compensatory education should be limited to the kinds of services17 specified in the amended 2008-2009 IEP, or encompass analogous educational services appropriate to the Stu-
dent‘s current needs. See Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005) (“[T]he ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.“). Whatever its precise form, the remedy must be “appropriate in light of the purpose of the Act.” Burlington, 471 U.S. at 369 (internal quotation marks omitted).
CONCLUSION
We have considered the parties’ remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment is affirmed in part and vacated in part. The case is remanded to the district court for further proceedings consistent with this opinion.