Richardson Independent School District v. Michael Z Ex Rel. Leah Z

(1969), (“Congress at not applies ap- 23 L.Ed.2d 360 state did intend necessarily surrogate plat- plication federal law on those state law should law physical cease at the boundaries of the forms. 43 U.S.C. 1333. platform. may The same concerns be Rodrigue, the held that an Court “[I]n equally applicable fortuitously to accidents admiralty action under DOHSA does not sea.”). surrounding consummated apply ‘actually occurring’ to accidents on islands, these artificial and that DOHSA CONCLUSION application preclude therefore does grant AFFIRM the We district court’s adopted through of state law as federal law partial summary judgment in favor of to wrongful arising OCSLA death actions finding applies that OCSLA to the W&T platforms.” from accidents on offshore indemnity contractual and contribution Tallentire, 217-18, at U.S. claims. REVERSE the district We court’s (citing Rodrigue, 395 U.S. grant partial summary judgment fa- 1835). “Congress This is because did finding governs vor of Omni that DOHSA ... island-platforms not intend these claims, Hollier’s tort and REMAND this admiralty’s jurisdiction.” be within In re case to the district court for further Inc., Serv., Dearborn Marine 499 F.2d ceedings opinion. consistent with this (5th Cir.1974). 263, 272-73 helicopter attempting platform; land on the deck of the oil it,

pilot reposition then tried to so

doing landing; hit boat after hitting the helipad spinning wildly, helicopter RICHARDSON INDEPENDENT fell into the sea with its occupants. This DISTRICT, SCHOOL Plaintiff- accident “actually plat occurred” on the oil Appellant-Cross-Appellee, form itself and applies. OSCLA therefore It impact analysis does not our that Hollier Z; Carolyn Z, MICHAEL as next fell into friends the sea after the accident occurred Z, child, of Leah a minor on Defendants- platform. See Smith v. Pan Air Appellees-Cross-Appellants. (5th Cir.1982) Corp., 684 F.2d (“[W]e and, have applied OCSLA conse No. 08-10604. law, quently, state to incidents in which Appeals, United States Court of platform workers who were the victims of Fifth Circuit. torts originating on these artificial islands injured Aug. 2009. actually were not or until killed fell, jumped, pushed or were into the seas.”);4 Dearborn, surrounding (1) jurisdiction: the version of DOHSA that was in effect at the that the accident occurred on seas, time. high or over rather than on the (2) platform, the decedent was a

4. Smith applied helicopter law maritime to a helicopter pilot engaged maritime-type pilot's helicopter tort claims for a crash that function, worker. platform rather than a high occurred over seas. 684 F.2d at id. 1110-11. Neither of these facts Smith, platform crane and its case, present are in this where the accident crane ball extended out over the Gulf of Mexi- on, over, slightly platform occurred co; helicopter collided with the crane ball itself, platform and where the victim was a Id. at 1105. and crashed into the Gulf. worker, helicopter pilot. rather than the Smith relied on two facts to find maritime par- to reimburse the required therefore certain costs associated with ents for court also facility. The district awarded costs, attorneys’ fees and in the amount of granting total relief reasons, $91,482.60. following For the vacate and remand. I Robinson, Walsh, Ranee

Bridget Z., a minor child at all relevant Leah Anderson, Brown, Gallegos, Aldridge & times, diagnosed was with attention deficit Austin, TX, (argued), Matthews Nona C. disorder, disorder, defiant bi- oppositional Walsh, Anderson, II, Tanguma, Joe Ruben disorder, autism, separation anxiety TX, polar Brown, Irving, Aldridge, & Schulze disorder, pervasive developmental and dis- Cross-Appellee. Plaintiff-Appellant for and experiencing order. After emotional (argued), Law Of- Myrna Bernice Silver at numerous behavioral difficulties Silver, Dallas, TX, for B. Myrna fices of schools, grade Leah entered RISD for fifth Defendants-Appellees Cross-Appellants. diag- in the fall of 1999. Leah’s various Borreea, Thompson & Christopher Paul special her for education qualified noses TX, Horton, LLP, Houston, TX for Ass’n services from and related RISD. Under Fund, Legal Boards Assistance of Sch. IDEA, obligated provide RISD Amicus Curiae. Leah with an education tailored her McDermott, Em- Floyd, Will & Tamu K. an specific through needs individualized DC, of Par- Washington, for Council ery, (“IEP”). Texas, In program education Advocates, Amicus Curiae. Attys. & ent responsible preparing committee Admission, Review, IEP Leah’s (“ARD Commit- and Dismissal Committee “Committee”). tee” or HIGGINBOTHAM, GARZA Before grade, In Leah entered West- seventh PRADO, Judges. Circuit where she was High wood Junior School (“BA”) Adjustment in placed a Behavior GARZA, Judge: Circuit EMILIO M. meeting An ARD re class. Committee under the Individu- arising In this case that in dur port indicates October Act Education als with Disabilities eighth-grade year, she was ing Leah’s (“IDEA”), School Independent Richardson level, writing third-grade at a second- to “District”) (“RISD” appeals or the District level, per reading third-grade judgment favor of the district court’s level.1 forming sixth-grade math at a Carolyn Z. and Z. as Appellees Michael behavioral and academic difficul Leah’s daughter Leah Z. next friends of their eighth grade increased in and she ex ties court determined Specifically, regression significant over perienced Leah with a failed to that RISD grade. ninth When prior summer as re- appropriate public free grade ninth began was Leah Westwood quired under special education students’ academic grade came from termine level assessments 1. These grade Developed capabilities in relation to "mainstream” results on the Texas State Leah’s Assessment, designed levels. a test to de- Alternative leave, School, maternity long-term ARD RISD hired a High Committee Junior Nonetheless, substitute, IEP.2 met to revise her not certified to teach who was difficul Texas, Leah’s academic and behavioral supervise Leah. RISD of- began fall she leav ties escalated. In the fered little assistance to the substitute. daily. almost ing permission class without example, given For she was late, lengthy at school took Leah arrived IEP, explained and no one to her that time, at a upof to two hours breaks major problem fleeing November, early. away Leah ran left appears It that most of the infor- class. eventually caught by and was from school mation the substitute had about Leah At her mother’s police the school officer. came from Leah’s mother. Leah remained a citation for request, she was issued leav weeks, during at RHS for two which ing grounds. On recommenda pattern disruptive behavior and re- psychiatrist, tion from Leah’s RISD edu March, fusal to work continued. Later setting cated Leah in a “homebound” an incident occurred at home where Leah days break. prior four to the winter scratched her father and caused him to break, Leah returned to After winter psychiatrist bleed. Her recommended in placed and was a different Westwood psychiatric facility, Leah’s admission to a Though BA was ini- class. transition parents eventually placed and Leah’s her smooth, tially by mid-January Leah was the Texas NeuroRehab Center late, early, again arriving leaving and wan- (“TNRC”). 5, 2004, April As of dering per- outside the classroom without parents unilaterally had removed her from occurred, mission. Numerous incidents without notice to the District. officers, including evading Leah TNRC, At Leah attended the on-site furniture, teachers, insulting overturning (“UCS”), University pub- Charter School using profane language, disrupting and lic charter school. developed UCS an IEP testing. evaluating conflicting In evi- provided physical for Leah and her with dence of how the school reacted to Leah’s therapy, occupational therapy, and coun- class, frequent absences from the district seling. Her adverse behavior continued court concluded that sometimes RISD em- grop- and included numerous instances of supervised during ployees Leah her ab- ing patients, staff members and at- other sometimes not. sences and did tempting to patients’ remove other cloth- February, In was discovered dur- ing, refusing to follow directions or attend ing unsupervised absences from class Leah class, in engaging and self-mutilation. She in engaging was sexual activities with oth- frequently physically was restrained or in psychia- er students the bathroom. Her in placed locked confinement. Leah’s doc- trist recommended that Leah remain home tor, Mehta, Dr. considered Leah one of her until an alternative could be patients. most difficult Dr. Mehta attrib- found, March, agreed. and RISD Leah problems uted Leah’s behavioral to three High was transferred to Richardson 1) (“RHS”) testing factors: Leah in placed School and in a BA class. her limits 2) placement; Since the teacher of this class was on restrictive the fre- TNRC goals improv- supervised by 2. The resultant IEP included to be at all times stall ing reading comprehension Leah's skills to a and to remain in the classroom unless she high third-grade permission level and her math skills to a had to leave. The IEP included fifth-grade Strategies promote keeping level. remedial methods such as her class- progress using frequent using "physical prox- Leah's included re- room door closed and limiting imity” prevent exiting ward breaks but her time outside the her from without Specifically, required permission. classroom. Leah was parents awarded agreed, and in her medications changes made quent $54,714.40 medication the correct as reimbursement for the room attempt to find 3) disorders; cyclical rapid and and board, comprehensive therapy for her ser- behavior caused in her mood and changes services, vices, neurological nursing testi- Dr. Mehta bipolar her disorder. The district court also award- diagnostics. signifi- did not Leah’s behavior fied that $36,768.20 attorneys’ ed Leah’s shortly after Leah until cantly improve appeals. now fees and costs. RISD medication Clozaril. taking the started improvement attributed Leah’s The doctor II TNRC’s structured a combination of We review de novo medication, environment, intensive that the local school’s IEP court’s decision Leah therapy sessions. counseling and that the alternative inappropriate TNRC on November discharged from appropriate the recommendation with question as a mixed of law and fact. See education class special attend a she L., v. Todd Teague Indep. Sch. Dist. future prevent supervision one-on-one (5th Cir.1993) (citing F.2d Chris to lack of su- related problems behavioral topher Corpus Indep. M. v. Christi Sch. pervision. (5th Cir.1991)). Dist., Meanwhile, 2004 Leah’s June findings “underlying court’s The district meeting to ARD requested an Committee for clear error. fact” are reviewed Af- at TNRC. request child obtained benefit Whether from reviewing Leah’s assessments ter finding services is a special TNRC, ARD found Committee fact. underlying of her providing of capable remained education appropriate public a free III residen- request and denied the interpretation an appeal This involves developed tial The Committee placement. IDEA, application and of 20 U.S.C. IEP”) (the IEP 2004 updated an “June §§ After the events this 1400-1487.3 Leah’s sexu- attempted to account for case, Congress amended and reauthorized par- behavior. Leah’s aggressive al and IDEA, see Individuals with Disabilities to the that the new argued ents Committee 2004, Act of Improvement Education adequately account for her IEP failed to (codified 108-446, 2647 as Pub.L. 118 Stat. regression. The or academic behavioral 1400-1482), §§ and amended at 20 U.S.C. found that the June 2004 district court Department of Education revised substantially to Leah’s IEP was similar As implementing regulations, IDEA’S see previous IEPs. to States for the Education sistance 2004, a re- July parents Leah’s filed Disabilities and Preschool Children With process due quest for administrative Disabilities, 71 for Children With Grants failed to hearing alleging that RISD 2006) (codified 14, Fed.Reg. (Aug. 46540 as appropriate public with a free vide Leah 301). §§ & For amended at 34 C.F.R. 300 requesting case, to the code present we must look Hearing for her at TNRC. at the time regulations existed parents found in favor of Officer In- of this case. See Alvin $56,000. court of the events awarded them The district Handicapped Children Act for All Act include the Edu- Education 3. Prior versions of the 94-142, 1975, ("EAH- Act, 773 Pub.L. 89 Stat. Handicapped Pub.L. 91- cation of the CA”). 230, ("EHA”), (1970) and the 84 Stat 175 292 F., 247-48;

dep. Dist. v. A.D. ex rel. Patricia from the instruction.” Id. at see Sch. Cir.2007). (5th That n. 4 Rowley, 382 also 458 U.S. at 102 S.Ct. is, we must look to the 1997 version of Still, the educational benefit “cannot (which 2004) through IDEA effect minimis; be a mere modicum or de rath- implementing regulations. See In- and its er, likely produce an IEP must be prog- with Disabilities Education Act dividuals ress, regression or trivial educational 105-17, 111 Amendments of Pub.L. F., advancement.” Michael 118 F.3d at (codified §§ Stat. 37 at 20 U.S.C. 1400- omitted). (quotation marks and citation 1487). Here, hearing officer and dis IDEA states all requires pro trict court found that RISD failed to appropriate public children with a “free vide Leah with a free appropriate public receive fund education” order to federal Specifically, they education. found that 1412(a)(1)(A); § ing. 20 U.S.C. Forest Leah’s had shown that the June —T.A., U.S.-, Grove Sch. Dist. v. IEP inappropriate 2484, 2487-88, 174 L.Ed.2d 168 appropri TNRC was (2009). To ensure that all children receive Consequently, hearing ate. both the offi meaningful opportunity to benefit from cer and district court determined that education, the education of children were entitled to reimburse with disabilities must be tailored to the ment from the District. RISD now chal unique needs of the handicapped lenges these decisions.4 1414(d). means of an IEP. 20 U.S.C. mandates disabled children be A children, among educated non-disabled Under a party ag when possible, the fullest extent in the least grieved by an administrative decision restrictive environment. See 20 U.S.C. action, brings a civil the district may 1412(5); Bd. Educ. Rowley, “grant 176, 202, such relief as [it] determines is U.S. 73 L.Ed.2d (1982). However, appropriate.” U.S.C. IDEA does not enti 1415(i)(2)(B)(iii). Supreme tle a program disabled child to a Court interpreted has the term potential. Cy “appropriate” maximizes the child’s “mean press-Fairbanks Indep. ‘appropriate’ light purpose of the Sch. Dist. v. Mi (5th Cir.1997). F., 245, chael of the Act.” Burlington 118 F.3d 247 Sch. Comm. v. of Instead, Mass., guarantees Dep’t 359, 369, Educ. 471 a “basic floor” U.S. of of opportunity, 1996, (1985). of “specifically designed 105 S.Ct. 85 L.Ed.2d 385 needs, unique meet the child’s supported parents unilaterally When remove their by permit school, services will him to benefit public child from a matter, parents 4. As an initial proof ask us to the burden party lies with the chal- clarify party proof which bears the burden of lenging regardless stage the IEP of the of the in a district court's review of an administra- F., proceeding. See Michael 118 F.3d at 252 tive decision under IDEA. At the administra- Bd., (citing Salley Tammany v. St. Parish Sch. level, tive party challenging it is clear that the 458, (5th Cir.1995); Teague, 57 F.3d 462 999 proof. the IEP bears the burden of See Schaf- 131; M., Christopher F.2d at 933 F.2d at Weast, 49, 62, 528, 546 U.S. 126 S.Ct. fer 1289). Accordingly, we hold that at the dis- (2005). 163 L.Ed.2d 387 We have never dis- level, level, trict court as at the administrative tinguished the administrative the level from party challenging the the IEP bears the bur- purposes district court level for of determin- showing resulting den of that the IEP and the Rather, ing proof. who the bears burden of inappropriate are under IDEA. applied general we have the same rule that

293 procedural challenged RISD’s schooling may- have expenses the for IDEA, inquiry our fo in some so compliance of relief form appropriate an be 2004 IEP only on whether the June cuses situations: reasonably calculated to enable Leah disability, child with a of a If the edu- educational benefits.5 special to receive received previously who under the services and related cation F., fac- In we articulated four Michael the agency, enroll authority public of a to the determination of tors relevant second- elementary or in a reasonably calculated to an IEP is of or the consent ary without benefits meaningful educational a court or public agency, by referral under IDEA: agency may require hearing officer (1) on the program is individualized the cost of parents to reimburse assessment of the student’s basis hearing if the court or that enrollment performance; had not agency finds officer (2) in the program is administered edu- public appropriate made a free environment; least restrictive timely in a to the child cation available (3) are in a coordi- provided the services that enrollment. prior manner manner nated and collaborative 1412(10)(C)(ii); also Bur- see 20 U.S.C. “stakeholders”; and key 1996; 369-71, 105 S.Ct. lington, U.S. (4) academic and non-academic positive F., To receive 118 F.3d at 248. Michael are benefits demonstrated. reimbursement, child’s a disabled (1) calling an IEP specified at 253. have never prove must 118 F.3d We inappro- be how these factors must precisely (2) IDEA, priate have treated the weighed. practice, Mi- under the Act. proper when F. factors as indicators of Michael F., (citing Burling- at 248 118 F.3d chael requirements an IEP meets 1996); ton, 370, 105 see U.S. not held that district courts we have but Four v. County Sch. Dist. Florence also weigh them or to required are to consider Carter, 7, Through 510 U.S. By and Carter See, way. e.g., them (1993). 126 L.Ed.2d 284 VP, Dist. v. 566 F.3d Indep. Houston Sch. these issues consider each of We will (5th Cir.2009); Adam J. v. Keller turn. (5th Dist., F.3d Indep. Sch. Cir.2003); Dist. v. Indep. Houston Sch. (5th Cir.2000). R., 341, 347 Bobby adequacy of review of the Our Here, officer and district hearing First, has questions: limited to two IEP is IEP the June 2004 under analyzed court re procedural -withthe complied state However, the F. framework. the Michael Rowley, 458 U.S. at IDEA? quirements of the district court by which method Second, 206, [IEP] “is 102 S.Ct. 3034. unclear. the factors is somewhat weighed through procedures the Act’s developed find- express court made no The district the child to reasonably calculated to enable factor, did the first but ings regarding at 206- educational benefits?” receive IEP addressed Here, acknowledge Leah’s S.Ct. 3034. 102 year, since during the 2003-2004 school hearing and district court deter- officer 5. The only Leah's was inade- whether June 2004 IEP court addressed that the mined appears hearing inquiry to quate. Though adequate, officer was our June 2004 IEP provided RISD have also addressed issue. limited to that appropriate public education Leah with a free specific Though Leah’s behavioral difficulties and the district court might have goals. academic Leah’s explained why did not weight it afforded more to factor, contest the second so the district the fourth Michael F. factor than the oth court did address whether the IEP ers, we cannot conclude that the district was administered in the least restrictive legally court erred in application its of the briefly- environment. The third factor was above, explained Michael F. test. As referenced, stating with the court have not held that district courts must there “reason to doubt” that Leah’s apply the four in any particular factors implemented truly IEP was collabora- way. Our cases state fac these tive fashion. tors are “indicators” of an appropri IEP’s ateness, see, VP, 467; e.g.,

The district court to appeared afford J., 810; R., Adam 328 F.3d at factor, Bobby dispositive weight fourth guide F.3d at intended to namely whether a district posi- Leah demonstrated tive court in the inquiry academic and non-academic fact-intensive of evalu benefits. No direct ating evidence exists of actual whether an IEP provided an edu IEP, progress under the Therefore, June 2004 since cational benefit. the district already she was at TNRC when it was legally did not err affording more Thus, created. the district court evaluated weight or less Michael F. the fourth exclusively factor in terms of factors. IEPs, Leah’s progress previous argues that the district court

which it “substantially found were similar by requiring erred it to show that Leah June 2004 excep- [the IEP] with several made actual educational progress in order tions.” The district court found that under to find that she provided with a free previous IEPs Leah had shown a “con- appropriate public education. Undoubted pattern sistent of regress,” and that “the ly, IDEA require does not a school district quite sparse evidence is regarding mean- maximize disabled potential. child’s ingful progress academically either or non- Rowley, U.S. academically for during Leah the 2003- Rather, it requires “that the edu Overall, year.” the district cation to which provided access is be suffi court’s conclusion that the June 2004 IEP cient to confer some educational benefit inadequate is based on finding its upon the handicapped child.” Id. at consistently RISD was unable to resolve 3034; R., Bobby see also primary causes of Leah’s academic court, F.3d at 349-50. The district howev failure —her refusal to remain in the class- er, did not base its ruling on a failure to room and her destructive conduct when maximize potential; it concluded she was there. Though acknowledging that the June 2004 IEP was insufficient to that the IEPs contained measures ad- confer issues, upon dress benefit Leah these the district court found at all. This the measures conclusion was not insufficient to based ex resolve the clusively problem because on Leah’s progress. had failure to repeatedly Rather, failed in past. pattern was the stark Accordingly, regres dis- trict court sion over a significant period concluded that the June 2004 time under IEPs, IEP provide failed to meaningful a similar edu- combined with RISD’s docu cational inability benefit to Leah keep because it was not mented in Leah the class reasonably room, calculated prevent Leah that any indicated that IEP substan fleeing from or likely produce tially different similar to previous ones was previous results than IEPs. Therefore, fail. doomed to the district

295 private proper a is by mining placement view- when legal not commit error court did history of as rele- regression IDEA. ing Leah’s under that the June its determination vant a IEP was insufficient to

2004 benefit. argues court RISD that the district Moreover, not err the district court did failing to by determine erred finding Leah received in its factual that strictly at com treatment TNRC in the 2003- minimal educational benefits that determining plied instead A court’s deter- year. district 2004 school permitted was if her treat a received edu- mination of whether Carter, “otherwise proper.” ment was See is for clear benefits reviewed cational par 114 at 361. When 510 U.S. S.Ct. R., Bobby 200 F.3d at 347. error. See unilaterally from remove their child ents court’s supports record the district in place private school and them a public in- that, isolated absent a few conclusion facility, they do so at own financial their success, arguable academic stances 373-74, Burlington, 471 at risk. See U.S. meaningful Leah failed to make overall 1996; Carter, at 105 S.Ct. 510 U.S. in school progress the 2003-2004 academic is, That parents S.Ct. 361. bear Accordingly, that the dis- we hold year. hearing might a risk that officer or court finding not err in court did its trict either child’s ex later determine that the placement IEP calling the June IEP was or that isting appropriate, inappropriate was under public a facility or into which program IDEA. placed inappro their child was case, in either a school district priate; for the pay placement. need not showing must The second parent unilaterally withdraws But when in order to receive reimbursement make child from and enrolls their their child the unilateral school, private parent in a is them facility is hearing if offi entitled to reimbursement IDEA. See proper under pri later that the 361; cer or court determines Carter, at Mi- 510 U.S. F., prop F.3d at The district vate school was “otherwise chael 248. IDEA,” public/private that TNRC court held even if it not meet er under did facility that “hybrid” should be assessed IDEA specific requirement. each Supreme framework Court’s Carter, 361. U.S. S.Ct. County Four v. Florence School District words, parents other are not barred Carter, By Through Carter private school reimbursement because the “inextricably Third adopted the Circuit’s precise meet the IDEA definition did not test order to determine intertwined” education, be appropriate public of a free prop- that Leah’s at TNRC requirements read cause IDEA “cannot be argues under IDEA. er applying parental placements.” Carter, by applying court erred 13, 114 was im- and that since Carter, then, it clear that Under proper under no reimbursement school, simply if TNRC were indi- foregoing analysis As the warranted. if permitted reimbursement would be cates, conclude that the district court “otherwise Leah’s education there was Carter, but we applying not err did However, Carter under IDEA. proper” and remand the district vacate because directly question pre- test for deter- does not answer the applied incorrect facility sented here of whether a IEP to the detriment of their if private public components both and must turns out inappropriate pay[ing] to be or requirements meet all IDEA in order for they for what consider to appropri- be the ” the district allow reimbursement. placement.’ ate (quoting Burlington, Id. issue, Attempting to resolve this the dis- 1996). 370, 471 U.S. at 105 S.Ct. For trict court held that a Leah’s parents willing to risk the latter option, judged by at TNRC could be the Carter Congress authorized a court to award ret- standard. The district court determined roactive reimbursement for a program la- that since Leah was enrolled at TNRC 12, 15, appropriate. ter found to be Id. at parental via unilateral placement after 114 S.Ct. 361. RISD failed to her awith free However, parents such no way “have education, appropriate public Carter's knowing at the time select a private nouncement that IDEA “cannot be read school whether the school meets state [or applying to parental placements” al- Carter, other relevant] standards.” lowed reimbursement if her education was U.S. at 114 S.Ct. 361. As the Carter proper” “otherwise under IDEA. noted, many Court IDEA requirements agree We with the district court. require cooperation and extensive involve Though the facts in pri- Carter involved a ment agency,6 the state educational and school, vate the holding contingent was not “such cooperation unlikely in cases facility on the fact that purely where the disagree school officials with the Rather, private. clearly the Court was need for the placement.” at on maintaining right focused estab- Thus, 114 S.Ct. 361. the Carter Court in Burlington: namely, lished that IDEA required only parental that a placement be empowers a court “‘to order au- “proper” parents to receive reimburse thorities to reimburse for their 12-13, ment. Id. at 114 S.Ct. 361. expenditures on special education essence, Carter found that it would eradi for a child if the court ultimately deter- cate Burlington' right to unilateral placement, mines that such rather than a if withdrawal ” reimbursement were al IEP, proposed is proper under the Act.’ lowed when every facilities meet Id. at (quoting S.Ct. 361 Burling- requirement, particularly those re ton, 1996). 471 U.S. at Car- quirements mandating cooperation, state appreciated ter the situation facing par- when the entire reason for the withdrawal contemplating ent a unilateral withdrawal parents’ is the dissatisfaction with the and after a public proves state’s efforts to educate their child. incapable of educating their child. Such a parent faces the difficult logic choice of either This extends to “ ‘go[ing] along with the [school district’s] TNRC. decided to re- with, 1401(8) (D) 6. Section appropriate provided defines "free conformity are the indi- public special education” as education and vidualized program[J related services that— 1401(11) IEP, Section an defines and states reviewed, (A) developed, that it must be provided have re- expense, been 1414(d). direction, vised in accordance with public supervision Under 1414(d), charge, developed by without the IEP must be an (B) Team,” represen- meet the standards "IEP of the State edu- which must include a agency, cational agency. tative of the local educational (C) appropriate preschool, include an agency required local play ele- mentary, secondary integral throughout school education periodic role IEP involved, the State process. review and revision

297 judged and her facilities are under the “otherwise public place move her from standard). indicates, they proper” The record expense, their own after at TNRC at however, that Leah’s at RISD unable to treatment TNRC that determined in integrated an fashion col appropriate public a occurred with her with free vide Carter, and As Burlington and laboration between TNRC UCS. Under education. noted, integral part district court “an their financial risk. the they did so at own Carter, her education her 361. Also in of involved residential at 114 S.Ct. TNRC, placement at over which the UCS parents received no assistance Leah’s a actual place control[.]” in Leah at could exercise no There their effort to RISD fore, facility, way impossible and had no of it would be for the district private knowing proce- met each to placement whether TNRC court evaluate Leah’s under Carter, IDEA. by running mandated requirement dural IDEA without afoul of be that expect any should not We therefore cause review of her would at the TNRC would “be Leah’s the to require court evaluate education the placement required exact under proper plan public private al with both and com Heights Indep. Act.” Alamo Sch. Dist. Accordingly, hold ponents. that Educ., F.2d Bd. State not determining did err (5th Cir.1986). permitted that reimbursement was if placement was proper” “otherwise however, argues, that because RISD under IDEA.7 school, charter public UCS analyzed should be under b school, i.e., for public normal test argues RISD also that the district court They Michael F. test. assert four-factor by determining erred that Leah’s place- parental place- only that dealt Carter IDEA. Mi- proper ment under See at This argument ments schools. F., F.3d at matter, (holding chael that unconvincing. an initial As may be if the only ordered that under Car- argument RISD’s assumes ter, establish at a parental placement a unilateral Act). proper comply have charter school would public pri- in authorizes reimbursement for totally with IDEA order the court course, placements in certain allow Of Carter vate situ- reimbursement. T.A., 2490-91; this ations. at support does contention and would Burlington, question. fact reach this 471 U.S. at never appropriate public A applies rule situations 1996. free education Carter special parents request reimbursement includes related ser- where provided public cost their education and re- vices have been at child’s 1401(8)(A). services, expense. “Spe- would lated no such costs U.S.C. “specially if moved child cial education” is defined as de- parent simply accrue their instruction, Further, parents, signed school. no cost to another unique rule of a child with a argues require for a that would meet needs disability, including to be instruction conducted Leah’s education UCS evaluated classroom, home, in hospitals from her treatment at TNRC in the separately (since institutions, settings; and in other is clear under Carter that However, possibility that the ruling we note our is limited do not foreclose facts case, hybrid-type it is of future would indi- to the facts of this where situations evaluating pub- appropriateness clear Leah was cate treated collaborative component facility. We under IDEA. hybrid public/private lic education fashion at a 298 in physical

instruction education.” Id. Circuit’s decision Kruelle v. New Castle 1401(25). § Dist., “Related (3d services” are County Sch. 642 F.2d 687 Cir. 1981), and the Seventh Circuit’s decision

transportation, and developmental, such Dale M. v. Bd. Educ. corrective, Bradley-Bour- supportive and other services of of High 307, bonnais Sch. Dist. No. 237 F.3d (including speech-language pathology (7th 813, Cir.2001). 817 Though the tests services, audiology and psychological adopted by each circuit contain over- services, physical occupational ther- lapping language arguable degrees of recreation, apy, including therapeutic re- semantic similarity, major one characteris- creation, services, social work counseling separates tic the Third and Seventh Cir- services, including rehabilitation coun- approaches. cuit’s Specifically, the Third seling, services, orientation and mobility Circuit’s test focuses on whether a child’s services, except medical that such medical, social, or emotional problems are medical services diagnostic shall be for “inextricably intertwined” with the learn- purposes only) and evaluation may be ing process, while the Seventh Circuit’s required to assist child with a disabili- test focuses on private whether the resi- ty to benefit from special .... dential placement “primarily is education- 1401(22). Id. Department of Education al.” regulations provide that placement in “[i]f Kruelle, public private or Third Circuit residential enunciated program is following necessary provide test for special determining when a education and private related residential services to a is appropri- child with a disability, ate under IDEA: program, including non-medical care board, and room and must be at no cost [ajnalysis must focus ... on whether of the child.” 34 C.P.R. full-time may be considered Thus, that, 300.302. it is clear in some necessary for educational purposes, or situations, school district must whether the residential placement is a reimburse a disabled child’s parents medical, response to social or emotional costs of a residential program. problems that are segregable from the learning process.

The Fifth yet Circuit has not articulated when, test for determining in the face of 642 F.2d at 693. Under the Third Cir IEP, an inappropriate a private test, residential cuit’s if a court cannot segregate a proper under medical, the Act. social, child’s prob emotional Among circuits that have considered the lems from learning process, the school issue two apparently approaches distinct district must reimburse the parents for the have emerged, as articulated in the Third placement.8 residential Thereafter, each circuit to consider the issue group Another of circuits have enunciated However, has cited Kruelle. degree Kruelle, tests similar to but with notable se- which each adopted applied court has circuits, mantic differences. In these the in- inextricably intertwined signifi- test varies extricably inquiry intertwined ap- does not cantly. Several circuits fully seem to have pear See, primary be the e.g., focus. See, adopted e.g., the test. County Burke Bd. Hershman, 223, Abrahamson v. 701 F.2d 227 Denton, 973, (4th Educ. v. 895 F.2d 980 of (1st 1983); Cir. Mrs. B. v. Bd. Milford Cir.1990); Dep’t Tenn. Mental Health & Educ., 1114, (2d Cir.1997); 103 F.3d B., 1466, Mental Retardation v. Paul 88 F.3d A.C., Ind. Sch. Dist. No. 284 v. 258 F.3d (6th 1996); Cir. Clovis Sch. Dist. Unified (8th Cir.2001); County Bd. Jefferson v. Cal. Hearings, Admin. 903 F.2d Office of Breen, (11th Educ. v. 853 F.2d 857-58 (9th Cir.1990) curiam); (per McKen- 1988). Cir. Smith, (D.C.Cir. zie 1985). the school district to M., sponsibility of Circuit enunci-

In Dale the Seventh care”). determining when The Clovis maintenance a different test such ated required psy- reimbursement for court also denied IDEA: 645-47. How- chological services. is between ser- ever, essential distinction if affected the child’s [t]he such services enabling toward primarily oriented vices psychologically or re- ability physically to an education to obtain a disabled child education, they segrega- not ceive an were more toward en- and services oriented learning process and under ble from the in noneduca- engage the to abling child have been language Kruelle’s would broad are former “relat- tional activities. reimbursable. meaning of the the services” within ed conception a IDEA has broad Certainly, statute, the not. latter to that all and seeks ensure of education proper the Accordingly, F.3d provided, are disabled children is the Circuit whether Seventh inquiry meaningful to expense, opportunity with a “pri residential private the 1400(d)(1)(A); 20 U.S.C. learn. Though the court cit marily educational.” T.A., However, at 2490-91. Dale M. test favorably, the Kruelle ed require districts to does not markedly the Kruelle test from differs private placements for residential that pay whether the child’s the focus not on that a to social, are not for disabled child medical, problems are essential emotional learning process, from but an education. See 34 C.F.R. segregable the receive provided at on the services rather reim- (limiting 300.302 a school district’s primarily facility geared are residential private to ser- obligation bursement child obtain an edu helping the toward “necessary ... provide vices that are to standard, courts have cation. Under this education”). to under- By requiring courts those services a distinction between drawn determining task of take the Solomonic treating a primarily for child’s that are medical, social, when a and emotion- child’s and those problems or behavioral medical edu- problems segregable al are enabling for primarily services are cation, lia- expands Kruelle school district See, e.g., id. at instruction. educational beyond IDEA. Put bility required by 410, 429-30, D.D., 817; 212 Ill.2d People imagine a way, another it is not difficult to (Ill.2004). Ill.Dec. N.E.2d a various diffi- case where disabled child’s to Undoubtedly, it is difficult conceive a impossible segre- culties for court to may child, a particularly a child disabled capable of receiv- gate, but the child is still social, disabilities, medical, whose mental an benefit without ing educational problems would have no ef- or emotional placement. residential Kruelle does ability to learn and fect on child’s account this situation. segregable from the therefore be would process. applying courts learning Some this, the fol Considering adopt recognized test to have appear the Kruelle lowing test: “inextricably breadth of the inter- to for a residential order attempted lim- inquiry and have twined” place- be appropriate See, Clovis, application. e.g., it its 1) essential in order for ment must be (“a must be main- F.2d at 643 child who meaning- receive disabled certainly kidney dialysis cannot tained on 2) benefit, primarily ful educational to the benefit from education physically the child to enabling oriented toward necessary are that such services extent alive, ... it is not the re- obtain education. him but keep Kruelle, “designed spare this test does not make from an obli- Unlike schools determination contin- reimbursement gation might well service gent ability on a court’s to conduct unduly prove expensive beyond task of arguably impossible segregating of their range competence.”); Teague, 999 social, medical, emotional, and edu- child’s (denying F.2d at 132 problems. prong cational The first our treatment and observ- requires place- test court to find that the ing facility’s “focus was on ment for the child to receive a is essential management” pri- behavior and that In other meaningful educational benefit. facility only the vate “devoted same or a words, if a child is able to receive an little more time to Todd’s educational benefit without the residential school.”). than gramming [public] did the if placement, placement helpful the is even education, to a the is not child’s school test, prong Unlike the first of our which required pay to for it under IDEA. This private placement asks whether the was the aligns goal formulation of test with the by in appropriate general determining of IDEA: enable a child to to disabled in whether was essential order for the meaningful receive a educational benefit. meaningful child to obtain a educational Moreover, prong directly this is tied to benefit, the prong second on ap- focuses implementing regulations, IDEA’S which level, at propriateness specific a more ask- state that public “[i]f ing whether the treatments that private program necessary is private facility provided primarily the were provide special education and related ser- oriented towards the enabling child to re- disability, vices to a with a the child meaningful ceive a educational benefit. As gram, including non-medical care and M., the Seventh Circuit observed Dale board, room and must be at no to the cost “primarily the test oriented” is another of the child.” C.F.R. 300.302. way determining of the whether child’s prong question Our second asks the ... “problems primarily are educational.” posed in M.\ Dale Was the residential M., Thus, See Dale 237 F.3d at a placement primarily oriented toward en- court reviews the of purpose the abling the child to obtain an education? proxy as a understanding broad in though scope, does not problems, the nature of the along child’s require districts to bear the costs of toway determining the whether the pri- pri- residential services that are appropriate. vate In Dale marily a treating aimed at child’s medical M., the court held that prob- the child’s enabling partici- difficulties or the child to educational, not primarily lems were as pate in non-educational activities. by evidenced the treatment he received at ensures that all disabled children receive a placement. the private Though the child education, meaningful but it not in- had “the intelligence perform well as a tended to the treating shift costs of a he student” suffered from “lack of social- disability child’s dis- ization,” and purpose trict. This is made clear in IDEA’S defini- -keeping student out services,” tion of treatment — “related which limit re- jail this characterization of his imbursable medical services to those “for —confirmed problems. Similarly, here we would diagnostic only.” evaluation purposes expect Leah’s treatment at TNRC to have 1401(22); Irving U.S.C. see Ind. Sch. Tatro, 892-93, primarily been oriented towards education- Dist. 468 U.S. (1984) al if her improvement, problems L.Ed.2d 664 indeed (noting services primarily medical exclusion was were nature. to, directed primarily designed i.e. prong of our test is neces- The second meaningful her edu- inquiry. enabling A court to receive sarily a fact-intensive Accordingly, we find that cational benefit. consider the extent to which should considering not place- the district court erred provided by the residential services remand, therefore, Our limit- this issue. within the IDEA’S definition ment fall question of whether the second services” ed to the This “related “related services.” of our test has been satisfied. prong other factors new should inform analysis court determining Specifically, wheth- on remand may consider review facts determine to- should primarily oriented er the at TNRC was enabling to obtain an edu- whether Leah’s treatment a child ward include, enabling toward her primarily are oriented Such factors but cation. educational benefit. placed meaningful receive to: whether the limited facility for educational reasons B facility progress the child’s achieve- by educational judged is primarily argues that even if Leah’s If, upon analysis of the services reimbursement, ment. are entitled whole, the the court determines a the their failure to District oriented primarily residential adequate precludes any notice award. child enabling the to obtain 1412(a)(10)(C)(iii) toward provides condi U.S.C. education, examine the court must then “may” tions under which a district court of the part constituent each for a reduce the amount reimbursement treatments inappropriate out weed placement, including parents where (and therefore reimburse- appropriate the notify not the school district of their do able) words, finding a ones. other IEP reject the school district’s intention appropri- private placement is private facility. place their child that all under IDEA does mean ate did undisputed It is that Leah’s se reim- per there are received treatments their when not inform RISD of intentions burseable; rather, per- reimbursement 5, April Both they removed Leah on 2004. are related treatments that mitted found hearing the officer and district court at 20 by the IDEA 2, defined services by actual June that RISD had notice 1401(22). 2004, U.S.C. the date on which Leah’s residen contacted District discuss Therefore, we hold that the dis Consequently, both placement. tial Kruelle by adopting the trict court erred awarded hearing officer and district court inextricably Applying test. intertwined incurred only for costs reimbursement test, appears that the district our new 2, after June that resi finding made the factual court contends, however, that this The District Leah placement was essential for dential erroneous, post-June 2004 award was bene meaningful to receive notify prior and that failure to RISD district conclud Specifically, the court fit. recovery. bar all Leah’s withdrawal should achieve academic that “Leah could no ed argument is without merit. Section This placement.” short of residential progress 1412(a)(10)(C)(iii) that a district provides court’s record district supports conclusion, “may” therefore reduce reimbursement we conclude award, dis- giving met. the district court broad prong first of our test has been Ac- However, made cretion to determine reimbursement. court has not district abuse cordingly, the court did not the second district findings regarding factual awarding namely Leah’s treatment its discretion prong, whether toward, despite the lack of notice. oriented primarily at TNRC D.W., (finding that an C argument that the district court abused its par Finally, argues Leah’s by failing to award interest un- discretion fees, attorneys’ ents are not entitled to pres- for failure to der was waived awarding erred in that the district court arguments authority support ent prior to Au relief for services rendered position). as for ren gust as well services August dered after 2004 that exceeded V what IEP required.9 Because Because the district court erred find- have vacated and remanded the district ing that the reimbursement, granting court’s order appropriate considering without premature determination of these issues is ori- primarily time. this enabling toward to obtain a ented benefit,

meaningful educational we VA- granting the district court’s CATE order IV reimbursement and REMAND for cross-appeal, par In their ceedings consistent with opinion. this argue ents that the court failed to PRADO, Judge, request specially their in Circuit prejudgment address concurring: They terest. ask us to remand for consid However, eration this issue. we con nearly I concur in all of the court’s clude that the district court their denied opinion. separately only I write to note request granting not in prejudgment I interpret two-part that do not our test terest. Since Leah’s make no ar propriety placement for the aof residential gument authority and cite prop no for the departing as from that of the other circuits they osition that could or should recover that have this issue. As I addressed read we interest find that v. County Kruelle New Castle School Dis argument. have waived this Jason progeny,1 two-part See trict and its our test suggests ordering amicus RISD’s also that event been ... on notice that IDEA author- present reimbursement in the case violates izes courts to order of costs Clause, Spending special-education ap- the as there clear of services in is no propriate circumstances. notice in IDEA that a school will have Moreover, requires 129 S.Ct. at 2495. IDEA pay "primarily to for medical services.” The school districts to reimburse the costs of med- Supreme recently Court dismissed a similar ical, behavioral, other related services that Spending argument Clause in Forest Grove There, necessary are to enable a child to disabled v. Sch. Dist. T.A. the that Court held meaningful receive a educational benefit. the unambiguously fact IDEA does not See, e.g., Burlington, 471 U.S. state all conditions attached to a ac- state's 1996; 1401(8), (22), (25); § 20 U.S.C. ceptance necessarily of funds does not violate Accordingly, argu- 34 C.F.R. 300.302. this Spending the Clause: ment has no merit. accepting funding, expressly In States provide agree appropriate public to a free (3d Cir.1981); 1. 642 F.2d 687 see Abraham to Hershman, all children with (1st Cir.1983); disabilities. v. son 1412(a)(1)(A). awarding An Educ., order B. ex Mrs. rel. M.M. v. Bd. Milford of private-education (2d Cir.1997); reimbursement of costs County F.3d 1114 Burke Denton, when a school district fails to Bd. Educ. v. Denton ex rel. of merely (4th Cir.1990); requires FAPE the belat- district "to Dep't F.2d 973 Tenn. Men of expenses B., edly pay paid should have tal Health & Mental Retardation Paul v. 370-71, along.” (6th Cir.1996); Burlington, all 471 U.S. at F.3d 1466 Ind. Dist. Sch. No. C.C., (8th 105 S.Ct. 1996. States v. And have in 284 A.C. ex rel. 258 F.3d 769 technically part itself, the standard sister cir- practice the our formalizes is courts this limitation one other have cuits. is, on That already placed Kruelle. courts the first asks whether residen Our test have not ceased applying Kruelle their the placement tial is essential analysis determining that upon some resi educational benefit. meaningful receive necessary. They placement dential is have me, This, the standard. is Kruelle on determine whether gone instead the obtuse, Kruelle es linguistically Though placement par which straightforward question: sentially asks asking is ents are to be reimbursed itself child, disability, of her Does the because test, then, proper.3 step The second of our require placement a residential obtain approach is consistent with the also meaningful benefit other circuits. By requiring which is entitled? she essential, prong first be our brief, today adopt test is closely tracks question asks the same with that of our sister circuits. consistent the Kruelle enunciations of better I concur. therefore it, then, today’s opin As I standard.2 see joins adopting ion our fellow circuits in

general Kruelle standard. particu-

Our test also asks whether question

lar is enabling toward primarily oriented BOSTICK, Benjamin A. Petitioner- This child to obtain an education. is Appellant, necessary potential- limitation on Kruelle’s ly asks expansive scope, Kruelle QUARTERMAN, Director, Nathaniel necessary. Department Texas of Criminal Jus requires Even a child a residential when tice, Institutions Divi Correctional placement, the court must ensure that still sion, Respondent-Appellee. before question proper it. No. 08-20111. requiring the school district fund accomplishes this limiting Our test task of Appeals, United States Court place- to those residential Fifth Circuit. that are primarily ments oriented toward 21, 2009. Aug. education, to obtain an enabling child the IDEA’S keeping mind course conception And while

broad of education. Cir.2001); placement, v. a Sch. Dist. Cal. must fund residential Clovis Unified (9th requires Hearings, F.2d 635 must determine whether the child Admin. Office of Smith, 1990) curiam); (per program v. to receive Cir. McKenzie benefit.”). (D.C.Cir.1985); also 771 F.2d 1527 see Jeffer- Breen, County Educ. 853 F.2d son Bd. of Cir.1988). (11th A.C., See, (finding e.g., 3. F.3d at 777-79 necessary a residential A.C., ("[T]he remanding at 774 determine whether 258 F.3d appropriate); pay requires state for a disabled stu- student, Clovis, (denying at 641-47 reim- 903 F.2d dent's residential if inappropriate placement disability, for an of his cannot rea- bursement because or her agreed though parties that a sonably anticipated even both resi- be to benefit instruc- B., some kind was neces- placement.”); Mrs. dential tion without such ("In deciding sary). if

Case Details

Case Name: Richardson Independent School District v. Michael Z Ex Rel. Leah Z

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 21, 2009

Citation: 580 F.3d 286

Docket Number: 08-10604

Court Abbreviation: 5th Cir.