Sixth Circuit Orders Payment for Private School Placement

The U.S. Sixth Circuit Court of Appeals, whose decisions are binding in Michigan, recently ruled in favor of the parents of a special education student who privately placed the student and sought reimburse­ment from the public school. L.H. v Hamilton Co Dep’t of Ed, Nos. 17-5989/18-5086 (CA 6, August 20, 2018).

L.H. is a 13-year-old student with Down syn­drome. He was educated in the general education classroom through second grade, receiving “pull-out” and “push-in” services with a special education teach­er, occupational therapy, speech services, and a full-time aide. At his parents’ insistence, L.H.’s goals were closely tied to the general education curriculum. L.H. struggled, making minimal progress on his goals. The IEP team reconvened and placed L.H. in a center-based program for third grade. L.H.’s parents rejected the IEP, enrolled him in a private Montessori school, and sued the district for reimbursement of the private school costs.

L.H.’s parents disputed the proposed placement because the curriculum had low expectations, was not tied to state content standards, and the program did not issue report cards or assign homework. The par­ents claimed that placement at the center-based pro­gram would result in a 40% decrease in L.H.’s instructional time. At hearing, some district employees agreed that the center-based program’s instruction appeared questionable. The parents also offered evi­dence that other students in the center-based program were far less advanced than L.H. in reading and in their desire or ability to socialize.

The district court decision, which we previously reported on in the December 21, 2017 edition of School Law Notes, ruled that the district’s placement of the student in a center-based program violated the Individuals with Disabilities Education Act’s mandate that students with disabilities be educated in the least restrictive environment. The district court nonetheless ruled that the parents would not be reimbursed for the private placement.

On appeal, the Sixth Circuit agreed that the center-based program was inappropriate, but ruled that the parents were entitled to reimbursement for the private placement. While the district argued that the private placement, a Montessori school, lacked the structure that L.H. needed, the Sixth Circuit determined that the parents’ expert, who testified that the Montessori ap­proach works well for students with Down syndrome, was far more credible. The Sixth Circuit also noted that L.H. had a personalized curriculum and a dedicated paraprofessional at the Montessori school.

In determining the appropriate placement for a student with a disability, the IDEA strongly favors “mainstreaming.” The preference for mainstreaming is not absolute, however, and the student’s IEP team may place a student in a separate class, program, or build­ing if: (1) the student would not benefit from regular education; (2) any benefits to having the student in the general education setting are far outweighed by the benefits of special education; or (3) the student would be a disruptive force in the regular classroom.

To award reimbursement, a court must find that the public school violated the IDEA and that the pri­vate school is appropriate under the IDEA. Because the Sixth Circuit determined that the Montessori place­ment was individualized and appropriate under the IDEA, the parents were entitled to reimbursement.

The decision to move a student with a disability to a more restrictive setting should not be made without ample discussion among all IEP team members and evidence to support the more restrictive setting. Jump­ing the continuum of placement options or moving a student from general education to a center-based pro­gram is likely to be scrutinized in a due process hear­ing. Ensure that such decisions are made after careful consideration of all options, and that data exists to support a significant change in placement.