Ruling alters reimbursements for services unavailable to disabled

September 14, 2009

A recent federal appeals court decision is the latest attempt by judges to define the level of public education that disabled students are entitled to receive.
The ruling, in a case involving a girl from Richardson, imposes new standards for parents in Texas, Louisiana and Mississippi who seek reimbursement from school districts for some special education services not available from public schools.
The case focused on the federal Individuals with Disabilities Education Act, which requires public schools to offer "free and appropriate public education" for disabled children. More than 450,000 students in Texas receive services under IDEA.
If a local public school cannot supply that education, the district is obligated to pay for some services considered necessary for a legally appropriate education.
But court cases in several federal districts have struggled to define exactly what that obligation means. The Richardson decision, handed down Aug. 21, is the latest.
"It’s this big, gushy concept," said Angela Lello, public policy director for the Texas Coun cil for Developmental Disabilities, a state agency. "What’s ‘appropriate’?" Problems in school
The case involves a Richardson girl referred to in court documents only as "Leah Z." She entered the Richardson public schools in 1999, in fifth grade, and was pulled out by her parents in 2004.
During her time in Richardson ISD, according to court documents, she was caught frequently leaving campus, disrupting classes and engaging in inappropriate behavior with boys in the school restroom.
Leah was found to be autistic and bipolar with a constellation of other personality disorders, all of which qualified her as disabled.
After deciding that Richardson schools could not serve their daughter’s needs, Leah’s parents put her in the Texas NeuroRehab Center in Austin, a psychiatric hospital that has a charter school on its campus. While there, Leah was treated with medication and counseling and eventually attended classes at the school.
Her parents later asked the Richardson district to reimburse them for some of the costs. The district refused, saying that it had offered an appropriate education for Leah. The matter went to court.
In 2007, a Dallas judge agreed with the parents that the school district’s plan for Leah "was inappropriate and not reasonably calculated to confer any educational benefit upon Leah."
The parents were awarded more than $91,000. The district appealed.
Richardson school officials declined to comment on the court’s assessment of Leah’s care or any other aspect of the case, citing a policy not to comment on active litigation. 
The appeal was decided last month by a three-judge panel of the 5th U.S. Circuit Court of Appeals. The judges said that Leah’s parents had met every legal standa rd that had been in place at the time – but that those standards were inadequate for this case. The panel created a new legal test:
"In order for a residential placement to be appropriate under IDEA, the placement must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education."
And while the panel agreed that the parents had proved that it had been essential to place Leah in the Austin facility, there had been no finding as to whether the services received there had been "primarily oriented" toward her education, as opposed to medical or psychological issues.
The court vacated the payment order and sent the case back to the district court to assess that second new legal test.
Myrna Silver, the attorney for Leah’s parents, said she could meet that second test. After Leah was treated in Austin, her parents tried to get the Richardson district to approve her placement in a private school. But at that point, a hearing officer determined that Leah could be educated appropriately in public school.
"So if that was true, then the facility [in Austin] did its job and made her available to participate in a public school," Silver said, which means it provided services primarily oriented toward Leah’s education.
Lello said it’s difficult to assess the impact this case could have on any other student in Texas receiving services under IDEA. That’s because figuring out the difference between services that are primarily educational and primarily medical is not an objective process.
"It’s totally subjective, based in the needs of the individual student," she said.
But the new legal standard actually could be a benefit for so me parents, said T.K. Floyd, a lawyer who filed a friend of the court brief in Leah’s case on behalf of the Council of Parent Attorneys and Advocates, an organization of special education advocates.
"It is easier on some level because now there’s a standard in place for reimbursement for private placements – now parents know what to expect," she said. "However, for each case, the parents will have to meet both prongs of the new test. And depending on the particular facts, meeting both prongs may not be easy."
Leah Z. is now an adult, so the case will not affect her education, however it eventually is decided.
"She is living with her parents," Silver said, "and still needs a lot of care and intervention."
© 2009, The Dallas Morning News, Inc. All Rights Reserved.