Jenna R.P. v. The City of Chicago School District No. 229

2013 IL App (1st) 112247FIFTH DIVISION
DECEMBER 31, 2013
No. 1-11-2247
JENNA R. P. and E. SCOTT P., as her Guardian ) Appeal from the
and Next Friend, ) Circuit Court of
) Cook County.
Plaintiffs-Appellants, )
)
v. ) No. 10 CH 22880
)
THE CITY OF CHICAGO SCHOOL DISTRICT ) Honorable
NO. 229 and THE ILLINOIS STATE BOARD OF ) Mary L. Mikva,
EDUCATION, ) Judge Presiding.
)
Defendants-Appellees.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justice Lampkin concurred in the judgment and opinion.
Justice Reyes specially concurred in part and dissented, with opinion.
OPINION
¶1 Plaintiffs, Jenna R. P. (Jenna) and E. Scott P. (Scott), as her guardian and
next friend, appeal an order of the circuit court of Cook County which found in
favor of defendants City of Chicago School District No. 229 (District) and the
Illinois State Board of Education (Board), denying plaintiffs reimbursement of
1-11-2247
Jenna's tuition and expenses for her placement at a private boarding school. For
the following reasons, we reverse.
¶2 BACKGROUND
¶3 Plaintiffs filed this lawsuit pursuant to the Individuals with Disabilities
Education Act (IDEA) (20 U.S.C. §§ 1400 et seq. (2006)) and the Illinois School
Code (School Code) (105 ILCS 5/14-1.10 (West 2008)). A brief description of the
statute will aid in understanding this litigation. The purpose of IDEA is to provide
all children with disabilities with a free appropriate public education. 20 U.S.C.
§ 1400(d)(1)(A) (2006). One of the primary tools to further this objective is the
individualized education program (IEP). The IEP is a "written statement for each
child with a disability," which describes the child's present levels of achievement
and performance, the child's measurable annual goals, and the special education
and related services to be provided to the child. 20 U.S.C. § 1414(d)(1)(A). The
IEP is developed by an "IEP Team," which ordinarily must include the child's
parents, a regular education teacher, a special education teacher, and a
representative of the local educational agency. 20 U.S.C. § 1414(d)(1)(B) (2006).
IDEA provides parents challenging an IEP with comprehensive procedural
safeguards, including the right to an impartial due process hearing. 20 U.S.C.
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§§ 1415(f),(g) (2006). Any party aggrieved by the findings and decision made by
the state educational agency has the right to file a civil action with respect to the
complaint presented pursuant to section 1415 in a federal district court or a state
court of competent jurisdiction. 20 U.S.C. § 1415(i)(2) (2006). The complaint in
this case was filed in the circuit court of Cook County pursuant to section
1415(i)(2).
¶4 I. Jenna's Childhood Education
¶5 The record on appeal here, consisting primarily of the testimony and other
evidence adduced at the due process hearing before the Board, discloses the
following facts. In 1989, Jenna was adopted at birth by Scott and Rona S. (Rona).
According to Scott, he and Rona separated when Jenna was three or four years old.
Jenna's toilet training at 3½ years old included behavior modification treatment.
¶6 Jenna attended kindergarten and first grade at a private school named North
Shore. She transferred to start the second grade at Near North Montessori, another
private school. Jenna initially had trouble making new friends at the new school.
¶7 According to Scott, Jenna was molested from ages six to eight by a neighbor
approximately five years older. Jenna's parents divorced in 1997, when she was
approximately nine years old. Scott testified the divorce became acrimonious in
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2000 and Jenna suffered as a result. In October 2001, when Jenna was almost 12
years old, her parents retained Dr. Heidi Hamernik, a neuropsychologist, because
Jenna was temperamental and had difficulty maintaining friendships and
interpreting social cues. According to Dr. Hamernik, Jenna had a verbal IQ in the
average range and an above average performance IQ. Dr. Hamernik opined that
Jenna's greatest difficulties were "within the social-emotional arena." Dr.
Hamernik did not diagnose Jenna with a major depressive disorder, but found her
sad, anxious and despondent. Dr. Hamernik suggested Jenna's parents share her
evaluation and recommendations for addressing Jenna's difficulties in organizing
her thoughts, becoming caught up in details and forgetting to write down or turn in
homework.
¶8 Jenna's grades deteriorated during her eighth grade year at Near North
Montessori, which was the 2003-04 academic year. Jenna received counseling
from psychologist Lori Buckenberger between the ages of 13 and 15 years old. In
June 2004, Dr. Buckenberger discussed with Jenna's parents the need to closely
monitor Jenna's transition to high school "due to her history of poor academic
follow through, poor organizational skills, and nonverbal learning disability." In
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February 2005, Dr. Buckenberger reported there had been no followup on any
monitoring program for Jenna.
¶9 II. Jenna at Lane Technical High School
¶ 10 In September 2004, Jenna began attending Lane Technical High School
(Lane Tech). According to Scott, he and his ex-wife agreed that to assist the
transition, Jenna would live with his ex-wife and visit him on alternate weekends.
As the semester progressed, Jenna began failing some subjects and was teased by
her basketball teammates. On one occasion, several girls pushed Jenna into the
snow. Jenna's school attendance began to decline.
¶ 11 According to Scott, in February 2005, Jenna was cohabiting with a slightly
older boy at her mother's house. Rona took Jenna to Children's Memorial Hospital
to address the situation. While at the hospital, Jenna discussed a plan to hang
herself. Jenna was then hospitalized in the psychiatric ward. Hospital clinicians
were concerned Jenna was depressed and having adjustment problems. The
clinicians also opined that Jenna was developing a cluster of borderline
personality traits, but did not diagnose her with personality disorder due to her
age.
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¶ 12 After Jenna was discharged from the hospital, Rona requested that Lane
Tech evaluate Jenna to determine whether she qualified for special education. In
March 2005, a Chicago Public Schools psychologist found Jenna's achievement
fell at or above the ninth grade level and her IQ was in the average to above
average range. According to Scott, he and Rona participated in the development
of an IEP for Jenna in April 2005. The IEP reflects that Jenna had a primary
disability of "emotional disturbance," but was also found to have a learning
disability. The IEP contained strategies to reduce Jenna's academic stress by
deceasing her course load and granting time in a special education resource room.
Nevertheless, in her freshman year, Jenna accumulated 68 absences, failed five
subjects and earned only 3½ academic credits of the 24 credits required for a
diploma.
¶ 13 During Jenna's sophomore year, on December 8, 2005, Rona participated in
an evaluation of Jenna's IEP. On that date, Jenna was receiving an "A" in world
studies, a "C" in Italian, a "D" in music appreciation, and was failing geometry and
American literature. The IEP was modified to include, among other items:
extended time for tests, quizzes, projects, essays and research papers; a small
group or resource room set for testing; test and homework modifications, as
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needed; allowance for calculator use; provision of class notes, as needed; and a
modified grading scale. In addition, Jenna was assigned to a special education
resource room for 450 minutes weekly, to assist her with time management,
independent functioning and organizational skills. Further, a special education
teacher was assigned to Jenna to provide accommodations for her in her general
education geometry and earth science classes. Jenna was also scheduled for 60
minutes of social work weekly, to improve Jenna's self-esteem and help her
develop positive attachments.
¶ 14 According to Scott, however, Jenna began receiving homebound tutoring
based on her truancy problem. Jack Cox, a social worker at Lane Tech, testified
Jenna received a minimal amount of homebound tutoring because she was not at
home. Jenna accumulated 115 absences and received no academic credits. Her
class ranking at the end of the 2005-06 academic year was 919 out of 926.
¶ 15 Jenna went missing in Spring 2006. According to Scott, Jenna had later
informed him she was living with a woman and her pimp. Jenna also said the
pimp wanted to prostitute her, but she refused. Jenna further admitted she had
once smoked crack cocaine. On May 2, 2006, Rona met with Jenna's IEP Team by
telephone to revise the IEP. The IEP does not note Jenna was missing from home.
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¶ 16 In May 2006, Rona notified Scott that Jenna had been missing for over one
month. Scott hired a private investigator to find Jenna. After locating Jenna, Scott
placed her in an inpatient psychiatric hospital, where the staff told him Jenna was
severely depressed, oppositional and defiant, with a cluster of borderline
personality traits. The hospital recommended long-term residential care.
¶ 17 III. Jenna at the Aspen Achievement Academy
¶ 18 On May 26, 2006, Scott decided to send Jenna to the Aspen Achievement
Academy in Utah. He retained individuals otherwise employed as prison guards
or correctional officers to escort Jenna to Utah. The academy is a wilderness-
therapy program, in which adolescents are dropped off in the Utah desert and
taught to survive in groups.
¶ 19 Jenna was given a psychological evaluation by Dr. Jeffrey D. Rush during
her time in Utah. Dr. Rush's report refers to a number of traumatic events in
Jenna's life, including her mother's illness, an alleged gang rape and a recent
abortion. Dr. Rush diagnosed Jenna with dysthemic disorder, oppositional defiant
disorder, post-traumatic stress disorder, cannabis dependence and a nonspecified
learning disorder with a nonverbal learning disability and features of attention
deficit hyperactivity disorder. Jenna also displayed symptoms of borderline
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personality disorder, although she was not diagnosed with such due to her age.
Dr. Rush recommended Jenna be placed in a highly-structured and supportive
program to address her problems. Dr. Rush also recommended individual and
family therapy for Jenna, as well as a substance abuse program.
¶ 20 Scott testified he reconciled with his daughter in Utah, but knew the
academy was not a long-term solution. In early June 2006, Scott contacted
Josephine Martinez, who was responsible for special education services at Lane
Tech, for the purpose of arranging and financing long-term plans for Jenna when
she left the academy in Utah. Martinez informed him the IEP Team could not be
convened given the end of the school year, but to remain in contact to address
these issues.
¶ 21 IV. Jenna at the Elan School
¶ 22 On July 14, 2006, Scott sent a 10-day notice1 to Arne Duncan, then
superintendent of Chicago Public Schools, advising of his intent to place Jenna at
1
Under IDEA, failure to submit this 10-day notice may result in a reduction
or denial of reimbursement for enrollment in a private school. 20 U.S.C.
§ 1412(a)(10)(C)(iii)(I)(bb) (2006).
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the Elan School in Portland, Maine (Elan) and to seek reimbursement from the
District. Scott explained this decision was based on his desire to keep Jenna safe
and sober, the inclusion of Elan on a list of Board-approved schools, cost, and
Jenna's intelligence relative to the children at other institutions. On July 25, 2006,
Louis Rodriguez, the director for due process and mediation for the Chicago
Public Schools, wrote to Scott, notifying him the Chicago Public Schools would
not fund Jenna's unilateral placement at Elan.
¶ 23 Jenna attended Elan from July 2006 through April 2009. Kate Hawkins, a
social worker for Elan, testified the school provides a highly structured program
for emotional and transitional problems. Elan students attend academic classes at
night (with small class sizes) and participate in a life skills program during the
day. According to Hawkins, Elan students also perform jobs at the school and are
promoted to more interesting jobs if they are cooperative and diligent. Hawkins
testified she conducted sessions with Jenna in which she learned Jenna put herself
into various dangerous situations. However, Hawkins never conducted a formal
evaluation or assessment of Jenna. According to Hawkins, Jenna left Elan on a
positive note, but did not reach the highest job level at the school. Hawkins also
testified Jenna did not complete the program at Elan, but obtained a high school
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diploma from the state of Maine. The record further contains a May 8, 2008,
letter from Hawkins to Lane Tech, noting prior interventions proved unsuccessful
until Jenna was placed at Elan. Hawkins opined Jenna could not have been
educated outside a very structured and supervised residential program like Elan.
¶ 24 Scott testified he was in family therapy with Jenna during her time at Elan,
usually weekly. According to Scott, Jenna made academic progress at Elan and
was accepted to attend college at Western Illinois University, Southern Illinois
University, and Lewis University. Being accepted at Western Illinois University
was significant because Jenna expressed an interest in forensic science. Elan's
records for July 2007 show Jenna received high honors for all subjects, earning
100 in algebra, 98 in geometry, 98 in reading the classics, 98 in Spanish, 95 in
United States history I and 94 in English III. Jenna had a "B+" average when she
left Elan.
¶ 25 V. Scott's Efforts to Return Jenna to Lane Technical High School
¶ 26 Meanwhile, on November 17, 2006, Scott contacted Lane Tech's case
manager to request an evaluation of Jenna's placement at Elan. At a November 26,
2006, meeting of the IEP Team, representatives told Scott that Jenna would have
to be evaluated by a psychologist chosen by the District. During the meeting,
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Scott also voiced his concerns about being able to afford Jenna's placement at
Elan.2 Meeting notes indicate: "[d]ue to his decision being unilateral, likelihood
of CPS reimbursement for [Jenna's] residential school in Maine is not predicted to
be granted (team discussed post-meeting with father)."
¶ 27 On February 28, 2007, after a dispute regarding whether Jenna should return
to Chicago for a psychological evaluation, Scott provided the District with the
names of two psychologists in Maine, including Dr. Greggus Yahr. On April 27,
2007, the District agreed to pay Dr. Yahr to evaluate Jenna. Notes from the April
27 meeting indicate a 90-day observational period was required to assist the
District in assessing the least restrictive environment for educating Jenna. On
May 17, 2007, Scott signed the consent forms for Dr. Yahr's evaluation.
¶ 28 On January 17, 2008, Lane Tech's then-case manager and special education
teacher Lauren Osada contacted Dr. Yahr, who promised to contact Osada after
visiting Elan the following week. Dr. Yahr, however, did not place a followup
2
The record on appeal does not appear to disclose the cost of annual tuition
at Elan or a specific amount plaintiffs seek as reimbursement. During oral
argument, plaintiff's counsel provided a general estimate of $100,000.
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telephone call. Osada telephoned Dr. Yahr again on February 11, 2008, but Dr.
Yahr did not return the call. On April 8, 2008, Dr. Yahr informed a District
psychologist his computer crashed in November 2007 and he also believed he had
transmitted his report on Jenna by facsimile long ago. On April 31, 2008, Dr.
Yahr sent the District a summary report, noting Jenna's difficulties were
emotionally based, not cognitively based. Dr. Yahr diagnosed Jenna as meeting
the criteria for a student with an emotional disability, due to her inability to self-
regulate, depression in situational remission, and characteristics of borderline
personality disorder. Dr. Yahr opined the appropriate setting for Jenna would be
one where she is unable to avoid her emotions or the situation and remains
accountable for her behavior.
¶ 29 On February 11, 2009, the District notified Jenna and Scott of a March 6,
2009, conference at Lane Tech to review and revise Jenna's IEP and to consider
transition services. Lane Tech case notes suggest the conference was delayed
because Cox (Lane Tech's social worker) had difficulty speaking to Jenna at Elan
and the IEP Team needed Jenna's updated medical records. On March 11, 2009,
Scott left a voicemail at Lane Tech, stating he was running out of money and
demanding a decision regarding Jenna's placement. On March 12, 2009, Jenna
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completed a transition planning questionnaire about her grades and activities at
Elan, as well as her plan to live with Scott until she attended Western Illinois
University in September 2009.
¶ 30 On March 13, 2009, the IEP Team held a meeting regarding Jenna's
placement, which Jenna attended via conference call. The IEP Team noted Jenna
had 22.75 credits from Elan and had been on the Elan's honor roll for the prior two
years. The IEP Team listed necessary accommodations for Jenna and steps to
assist Jenna's transition to college. Jenna's revised IEP called for Jenna to boost
her word processing and computer skills to prepare for her goal of becoming a
forensic scientist. Jenna was also sceduled to receive 30 minutes of weekly social
work consultation to address her distractability, cognitive distortions and coping
mechanisms.
¶ 31 The revised IEP also called for Jenna to take biology, social science,
Spanish II, driver's education, music, art, and computer informational technology
courses in general education classrooms at Lane Tech for 80% of the school day.
The IEP Team rejected Scott's request for residential placement for Jenna. The
team concluded supportive services in a special education room for 20% of the
school day would meet Jenna's needs.
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¶ 32 V. The Due Process Hearing
¶ 33 On March 27, 2009, Scott requested a due process hearing before the Board,
which was not held until January 19, 2010. At the hearing, the Board's hearing
officer received the aforementioned testimony and evidence. In addition, Scott
testified Jenna returned to Chicago on April 6, 2009, and regressed to her prior
high-risk behaviors within three weeks of her return. Cox opined Jenna's
educational needs could be met at Lane Tech with related services provided 20%
of the school day. Cox also recommended 275 minutes of social work monthly,
which was more than most students he saw were provided. Osada testified Lane
Tech offered special education classes across the spectrum, including self-
contained instructional classes for more severe cases. Both Cox and Osada
concurred with the March 2009 IEP. David Yaffe, a special education teacher and
Lane Tech's then-current case manager, also concurred with the March 2009 IEP.
¶ 34 On January 29, 2010, the Board's hearing officer entered an order denying
reimbursement for Jenna's placement at Elan. The hearing officer ruled the
District had denied Jenna a free appropriate public education. The hearing officer
also ruled the District failed to carry its burden of proving Jenna's IEP was
appropriate, given the overwhelming testimony that Jenna needed a small teacher-
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pupil ratio in a highly-structured setting. Yet the hearing officer further ruled
Scott failed to carry his burden of showing his placement of Jenna with Elan was
appropriate. The hearing officer observed Jenna's problems stemmed from
parental management issues and it was not necessarily the school's duty to provide
residential placement for a chronic runaway based on psychological reasons
unrelated to the school.
¶ 35 In the hearing officer's view, however, Scott's chief problem was in failing
to demonstrate he placed Jenna in the least restrictive environment, given IDEA's
mandate that disabled students be educated alongside nondisabled students to the
maximum extent appropriate. The hearing officer found Cox and Osada seemed to
suffer from selective memory regarding questions to which they might be expected
to know the answers. Nevertheless, giving due weight to the opinions of District
staff that they could have provided a free appropriate public education to Jenna,
the hearing officer opined that providing Jenna with a free appropriate public
education in the least restrictive environment would have meant placing Jenna in a
self-contained, instructional classroom at Lane Tech, to benefit from a lower
teacher-to-pupil ratio, with more structure and certified staff, or a private day
school if that program failed. Given these conclusions, the hearing officer declined
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to rule on the District's claim that Scott made his request for a due process hearing
beyond the relevant limitations period in IDEA.
¶ 36 VI. The Circuit Court Proceedings
¶ 37 On May 27, 2010, plaintiffs filed a complaint in the circuit court of Cook
County to contest the findings and decision of the Board.3 On August 6, 2010, the
District and the Board filed their answer, along with the administrative record. In
January 2011, plaintiffs moved for summary judgment. In February 2011,
defendants filed a cross-motion for summary judgment.
3
Under the School Code, the hearing officer shall issue a written decision,
including findings of fact and conclusions of law, within 10 days after the
conclusion of the due process hearing. 105 ILCS 5/14-8.02a(h) (West 2010).
"Any party to an impartial due process hearing aggrieved by the final written
decision of the impartial due process hearing officer shall have the right to
commence a civil action with respect to the issues presented in the impartial due
process hearing." 105 ILCS 5/14-8.02a(i) (West 2010). Thus, the decision of the
hearing officer is not reviewed by the Board prior to judicial administrative
review.
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¶ 38 On May 27, 2011, the circuit court entered a memorandum opinion and
order in favor of the District and the Board. The circuit court agreed with the
Board that the District denied Jenna a free appropriate public education. The
circuit court also agreed with plaintiffs that the Board's hearing officer misapplied
the requirement of educating Jenna in the least restrictive environment in this case.
The circuit court nevertheless concluded when it "focused more broadly on
whether this was an appropriate placement under the IDEA, and whether [Scott]'s
actions were 'reasonable' under the statute, *** reimbursement is not required."
The circuit court ruled Scott's unilateral placement of Jenna with Elan "was
certainly a 'reasonable' response to Jenna's myriad of issues, [but] went beyond
concerns relating to her education." The circuit court noted Scott testified he
placed Jenna at Elan mainly out of concern for her safety and security. The circuit
court further ruled IDEA does not contemplate reimbursement for a placement
where the student's problems are largely behavioral. Accordingly, the circuit court
affirmed the decision of the Board's hearing officer denying reimbursement.4
4
The circuit court, like the hearing officer, declined to reach the issue of
whether plaintiffs' claim fell outside the limitations period provided in IDEA.
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¶ 39 Plaintiffs filed a motion to reconsider. On July 6, 2011, the circuit court
entered an order denying reconsideration, but clarifying the circuit court did not
find Scott was aware of the July 25, 2006, letter from Rodriguez objecting to
Jenna's placement with Elan before Scott transported Jenna to Elan. On August 3,
2011, plaintiffs filed a timely notice of appeal to this court.
¶ 40 ANALYSIS
¶ 41 On appeal, plaintiffs argue they are entitled to reimbursement for Jenna's
placement at Elan, and for the following reasons we agree. We first set forth the
standard of review and the statutory framework in IDEA cases.
¶ 42 I. Standard of Review
¶ 43 Review of an administrative agency's factual findings is limited to
determining whether the agency's findings of fact were against the manifest weight
of the evidence, while questions of law are reviewed de novo. See City of
Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998).
"An administrative agency's factual determinations are contrary to the manifest
weight of evidence where the opposite conclusion is clearly evident." City of
Belvedere, 181 Ill. 2d at 205. In contrast, "an agency's decision on a question of
law is not binding on a reviewing court." City of Belvedere, 181 Ill. 2d at 205.
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Illinois courts, however, grant some deference to the agency's expertise where it
resolves a genuine ambiguity in a statute or regulation it is charged with
administering. Department of Central Management Services v. Illinois Labor
Relations Board, 2012 IL App (4th) 110013, ¶ 51.
¶ 44 II. The IDEA Framework
¶ 45 IDEA "was intended to ensure that children with disabilities receive an
education that is both appropriate and free." Florence County School District 4 v.
Carter, 510 U.S. 7, 13 (1993).5 As defined in IDEA, a "free appropriate public
education" includes both "special education" and "related services." 20 U.S.C.
§ 1401(9) (2006). Special education must be specially designed instruction to suit
the needs of the disabled child. 20 U.S.C. § 1401(29) (2006). Related services
include:
"[T]ransportation, and such developmental, corrective, and other supportive
services (including speech-language pathology and audiology services,
interpreting services, psychological services, physical and occupational
5
Defendants do not dispute Jenna is a "child with a disability" within the
meaning of the IDEA. 20 U.S.C. § 1401(3)(A) (2006).
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therapy, recreation, including therapeutic recreation, social work services,
school nurse services designed to enable a child with a disability to receive
a free appropriate public education as described in the individualized
education program of the child, counseling services, including rehabilitation
counseling, orientation and mobility services, and medical services, except
that such medical services shall be for diagnostic and evaluation purposes
only) as may be required to assist a child with a disability to benefit from
special education, and includes the early identification and assessment of
disabling conditions in children." 20 U.S.C. § 1401(26)(A) (2006).
¶ 46 The United States Supreme Court interpreted the predecessor to the IDEA
as granting a court authority "to order school authorities to reimburse parents for
their expenditures on private special education for a child if the court ultimately
determines that such placement, rather than a proposed IEP, is proper under the
Act." School Committee of Town of Burlington, Massachusetts v. Department of
Education of Massachusetts, 471 U.S. 359, 369 (1985).
¶ 47 The IDEA essentially codifies the Burlington ruling:
"If the parents of a child with a disability, who previously received special
education and related services under the authority of a public agency, enroll
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the child in a private elementary school or secondary school without the
consent of or referral by the public agency, a court or a hearing officer may
require the agency to reimburse the parents for the cost of that enrollment if
the court or hearing officer finds that the agency had not made a free
appropriate public education available to the child in a timely manner prior
to that enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii) (2006).
When a public school system has defaulted on its obligations under IDEA, a
private school placement is appropriate if the education provided by the private
school is reasonably calculated to enable the child to receive educational benefits.
Carter, 510 U.S. at 12; see also Goldstrom v. District of Columbia, 319 F. Supp.
2d 5, 8 (D.D.C. 2004) (parents may be reimbursed for private placement where
public placement violated IDEA and private school placement is proper under
IDEA). The decision to reject public education in favor of enrolling a child in
private school, however, cannot be described as "reasonably calculated to enable
the child to receive educational benefits" if the private school does not offer at
least "some element of special education services in which the public school
placement was deficient." Berger v. Medina City School District, 348 F.3d 513,
523 (6th Cir. 2003). Retroactive reimbursement is an equitable remedy for the
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failure of the public school to provide a free appropriate public education to a
disabled student; thus, a private school placement must be consistent with the
purposes of IDEA. Berger, 348 F.3d at 523. To allow reimbursement where the
services offered by the public school are not deficient would entitle parents of
disabled students, at public expense, to seek any alternative school they wish if the
public education is inadequate. Mr. I. ex rel. L.I. v. Maine School Administrative
District No. 55, 480 F.3d 1, 24 (1st Cir. 2007).
¶ 48 Moreover, reimbursement may be denied "upon a judicial finding of
unreasonableness with respect to actions taken by the parents." 20 U.S.C. §
1412(a)(10)(C)(iii)(III) (2006).
¶ 49 This case involves a unilateral, full-time residential placement. Despite
IDEA's preference for educating children with disabilities in the least restrictive
environment (20 U.S.C. § 1412(a)(5) (2006)), the statute recognizes some disabled
students need full-time care in order to receive an educational benefit. IDEA
defines "special education" to include "instruction conducted *** in ***
institutions ***." 20 U.S.C. § 1401(29)(A) (2006). Pursuant to regulations
promulgated under the statute by the United States Department of Education, "[i]f
placement in a public or private residential program is necessary to provide special
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education and related services to a child with a disability, the program, including
non-medical care and room and board, must be at no cost to the parents of the
child." 34 C.F.R. § 300.104 (2006).
¶ 50 Nevertheless, the United States Supreme Court has ruled:
"[P]arents 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. If the courts ultimately determine
that the IEP proposed by the school officials was appropriate, the parents
would be barred from obtaining reimbursement for any interim period in
which their child's placement violated [IDEA]." Burlington, 471 U.S. at
373-74.
The Supreme Court has since reiterated this point. Carter, 510 U.S. at 15; see Doe
v. Nashville Metropolitan Public Schools, 133 F.3d 384, 387-88 (and cases cited
therein); Goldstrom, 319 F. Supp. 2d at 8 (and cases cited therein).
¶ 51 III. The Decisions Below and Plaintiffs' Claims
¶ 52 In the case at bar, the hearing officer denied the father reimbursement
because it found that his daughter could have been placed in a self-contained
classroom at Lane Tech, with more structure and specially certified staff, which
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would have met her needs. The hearing officer's memorandum order, dated
January 29, 2010, stated: "In the Hearing Officer's opinion, FAPE [free
appropriate public education] and the LRE [least restrictive environment] would
have meant placing Jenna in a self-contained, instructional classroom at Lane
Tech, to benefit from a lower teacher to pupil ratio, with more structure and
specially certified staff, and/or a private day school, if the self-contained
instructional program did not work our for her."
¶ 53 Plaintiff's primary argument on appeal is that, even assuming that the
hearing officer's conclusion was correct, it is irrelevant, because the school system
never offered her such an alternative. The hearing officer and the circuit court both
ruled the District denied Jenna a free appropriate public education, and defendants
do not challenge those rulings on appeal. Moreover, defendants do not argue on
appeal that plaintiffs were required to demonstrate Elan was the least restrictive
environment for Jenna.
¶ 54 IV. Errors of Law
¶ 55 For the reasons explained below, the hearing officer erred as a matter
of law, and thus we must reverse.
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¶ 56 A. Lack of a Request for an IEP Hearing
¶ 57 Federal courts considering the issue have ruled that an IEP should be
evaluated as drafted. R.E. v. New York City Department of Education, 694 F. 3d
167, 185-86 (2d Cir. 2012); see also A.K. v. Alexandria City School Board, 484
F.3d 672, 682 (4th Cir. 2007) ("In evaluating whether a school district offered a
FAPE [free appropriate public education] a court generally must limit its
consideration to the terms of the IEP itself.").
¶ 58 As a preliminary matter, we observe that we cannot ignore this rule in the
case at bar because the father did not formally "reject or seek a hearing on the IEP
in place when he placed" his daughter in a private school.
¶ 59 First, in June 2006, prior to placing his daughter in a private school, the
father contacted Josephine Martinez, the person responsible for special education
services at Lane Tech, where his daughter was enrolled, for the purpose of making
long-term plans for her. After attending Lane Tech for her freshman and most of
her sophomore years, the daughter had run away from home during the spring of
her sophomore year. After the daughter was located, the father attempted in early
June to make plans with the school. However, Martinez informed him that the IEP
team could not be convened, since it was the end of the of the school year. Left
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with very little choice in terms of making prompt plans for the upcoming school
year, the father in July sent a 10-day notice of his intent to place his daughter in a
private school. 20 U.S.C. §1412(a)(10)(C)(iii)(I)(bb) (2006) (to receive
reimbursement, a parent must provide a 10-day notice of his intent to place his
child in a private school). In light of his attempt to work with the school and the
fact that he was told that the IEP team could not be convened, his failure to
formally seek a change to the IEP does not provide us with a reason to ignore the
rule.
¶ 60 Second, although a parent may be denied reimbursement if he failed to
express his concerns at the most recent IEP meeting (20 U.S.C.
§1412(a)(10)(C)(iii)(I) (2006)), this notice requirement is excused if "the school
prevented the parent from providing such notice" (20 U.S.C.
§1412(a)(10)(C)(iv)(I)(aa) (2006)). In the case at bar, the school prevented the
father from expressing his concerns at an IEP meeting by refusing to convene one.
¶ 61 B. Errors of Law
¶ 62 Since the hearing officer must evaluate the IEP as it existed, and not a
hypothetical IEP that never existed, the officer erred as a matter of law. As we
observed above, federal courts have held that an IEP should be evaluated as
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drafted. R.E. v. New York City Department of Education, 694 F.3d 167, 185-86
(2d Cir. 2012); see also A.K. v. Alexandria City School Board, 484 F.3d 672, 682
(4th Cir. 2007)("In evaluating whether a school district offered a FAPE [free
appropriate public education] a court generally must limit its consideration to the
terms of the IEP itself.").
¶ 63 In the case at bar, the hearing officer concluded that the school district had
denied plaintiff a free appropriate public education, and that the district had failed
to carry its burden of proving that the daughter's existing IEP was appropriate.
Nonetheless, the hearing officer denied the father reimbursement because the
district could have, hypothetically, provided his daughter with an appropriate
education.
¶ 64 Since prior courts have held that we must review what actually was, instead
of what hypothetically could have been, we must reverse. There is good reason to
review only an actual, as opposed to, a hypothetical IEP. As the Second Circuit
Court of Appeals has explained, under the opposing view, "a school district could
create an IEP that was materially defective, causing the parents to justifiably effect
a private placement, and then defeat the parents' reimbursement claim" – every
time – "with evidence that effectively amends or fixes the IEP." R.E. v. New York
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City Department of Education, 694 F.3d 167, 186 (2d Cir. 2012). We cannot
countenance such a result.
¶ 65 Parents are not barred from reimbursement where a private school they
choose does not meet the IDEA's definition of a free appropriate public education.
Frank G. v Board of Education of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
(citing M.S. v. Yonkers Board of Education, 231 F.3d 96, 104 (2d Cir. 2000)).6 20
U.S.C. § 1401(9) (2006) (definition of a free appropriate public education). An
appropriate private placement need not meet state education standards or
requirements. Frank G., 459 F.3d at 364 (citing Florence County School District
4 v. Carter, 510 U.S. 7, 14 (1993)). For example, a private placement does not
have to utilize certified special education teachers or develop an IEP for the
disabled student. Frank G., 459 F.3d at 364 (citing Carter, 510 U.S. at 14). In
addition, parents may not be subject to the same mainstreaming requirements as a
school board. Frank G., 459 F.3d at 364 (citing M.S. , 231 F.3d at 105, citing
Warren G. v. Cumberland County School District, 190 F.3d 80, 84 (3d Cir. 1999)).
6
Justice Sotomayor was on the panel for both of these Second Circuit cases:
Frank G., 459 F. 3d 356, and M.S., 231 F.3d. 96.
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¶ 66 "No one factor is necessarily dispositive in determining whether a parent's
unilateral placement is 'reasonably calculated to enable the child to receive
educational benefits.' " Frank G., 459 F.3d at 364 (quoting Board of Education of
Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982)).
See also Carter, 510 U.S. at 11. However, "a unilateral private placement cannot
be regarded as 'proper under the [IDEA]' when it does not, at a minimum provide
some element of special education services in which the public school placement
was deficient." Berger v. Medina City School District, 348 F.3d 513, 523 (6th Cir.
2003). For example, a "small class size," such as in the classes provided to Jenna
at Elan, can be "one element of the special education services" needed for a child.
Frank G., 459 F.3d at 365.
¶ 67 For purposes of the IDEA, the term "special education" means solely what
the statute has defined it to mean: "specially designed instruction *** to meet the
unique needs of a child with a disability." 20 U.S.C. § 1401(29) (2006). As a
result of the plain language of the statute, a parent does not have to show that the
school has a special education department, or special education teachers, or "every
special service." Frank G., 459 F.3d at 364-65 (affirming the award of
reimbursement despite the school district's claim that the private school did not
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offer special education). See also Carter, 510 U.S. at 14 (a school's teachers do
not have to be state certified). A parent must show only that the school provided
specially designed instruction to meet the unique needs of his or her child. 20
U.S.C. § 1401(29) (2006). Proof may include evidence of the child's social and
academic progress, including test scores. Frank G., 459 F.3d at 366.
¶ 68 However, contrary to the plain language of the statute, the hearing officer in
the case at bar stated the question that he had to answer as: "Did the Elan School
Provide Jenna With FAPE [free appropriate public education] in the LRE [least
restrictive environment]?" The officer concluded that "[c]learly Jenna made
progress at Elan," and "[c]learly, in the case at issue, Jenna did well at the Elan
Residential School," receiving excellent grades. See M.S., 231 F.3d at 105 ("[a]n
assessment of educational progress" is the type of judgement to which a court
should defer to the hearing officer's judgment). However, the hearing officer
denied reimbursement, stating: "The chief problem with the Petitioner's case is the
failure to comport with an equally significant portion of the IDEA, namely, that
placement be in the least restrictive environment (LRE)."
¶ 69 The hearing officer erred, as a matter of law, in the question that he posed.
The United States Supreme Court held in Carter that parents seeking
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reimbursement did not have to prove that the school provided free appropriate
public education. Carter, 510 U.S. at 13. The Court stated:
"This case presents the narrow question whether Shannon's parents
are barred from reimbursement because the private school in which
Shannon enrolled did not meet the [IDEA's] definition of a 'free
appropriate public education.' We hold that they are not, because [the
definition's] requirements cannot be read as applying to parental
placements." Carter, 510 U.S. at 13.
As a result, the hearing officer erred, as a matter of law, when he asked: "Did the
Elan School Provide Jenna With FAPE ***?"
¶ 70 The hearing officer also erred, as a matter of law when it formulated the
ultimate question it had to decide as whether "the Elan School Provide[d] Jenna
With FAPE in the LRE [least restrictive environment]?" Like we do, the trial court
also found that the hearing officer "focused exclusively on whether Elan met the
LRE requirement," and it also found that this was an error as a matter of law,
stating:
"In denying reimbursement, the hearing officer focused exclusively
on whether Elan met the LRE requirement embodied in the IDEA.
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While LRE is a consideration, parents are not subject to the same
requirements as a school board in ensuring that a student is placed in
the least restrictive alternative educational setting. [Citation.] Thus,
this does not, in itself seem to this Court to be a basis for denying
[Jenna's father] reimbursement."
Like the trial court, the Second Circuit has held that, although LRE is one factor
that a hearing officer may consider, the same mainstreaming requirements that
apply to a school district do not necessarily apply to a parent's private placement.
M.S., 231 F.3d at 105. Thus, while LRE may be one factor, a hearing officer errs
when it makes LRE the ultimate test.
¶ 71 However, the Seventh Circuit has gone further than the Second Circuit and
has held that, when a school district fails to provide a child with an adequate plan,
the court is unable to determine whether the private placement is the least
restrictive alternative because, at that moment, it is "the only alternative." Board
of Education of Murphysboro Community Unit School District No. 186 v. Illinois
State Board of Education, 41 F.3d 1162, 1168 (7th Cir. 1994). The school district
cannot be heard to complain because "this situation result[s] from the school
district's failure to present a viable alternative." Murphysboro, 41 F.3d at 1168.
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As a result, the question is not whether the private school presented the least
restrictive option but "simply" whether the parent's choice "provided an
appropriate education." Murphysboro, 41 F.3d at 1168.
¶ 72 The Sixth Circuit agrees that LRE drops out as a consideration when the
school district has failed to provide a meaningful alternative. Rejecting a school
district's argument that the parent's choice of a residential program "was the most
restrictive option," the Sixth Circuit explained that, at that point, a court is "faced"
with only "two options": "the school [district]'s choice of inaction" or the parent's
"choice of a residential program with counseling and educational services." Babb
v. Knox County School System, 965 F.2d 104, 108 (6th Cir. 1992). The court's job
is to "compar[e] these two options" and decide whether the parent's choice
provided an appropriate education. Babb, 965 F.2d at 108.
¶ 73 Whether one adopts the trial court's view that the LRE can be one factor but
not the exclusive test, or whether one adopts the view of the Sixth and Seventh
Circuits that LRE drops out as a consideration once the school district fails to offer
a viable alternative, one must still find that the hearing officer erred, as a matter of
law, in making LRE the ultimate test. Due to these errors in law, we must reverse
and remand for a determination of the appropriate amount of reimbursement.
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¶ 74 V. The Limitations Period
¶ 75 Lastly, defendants argue plaintiffs' claim is barred by a limitations period
specified in the School Code. Plaintiffs respond that defendants forfeited this
issue by failing to plead it in the circuit court. The expiration of a statute of
limitations is an affirmative defense, which is forfeited if not timely raised in the
trial court. Fox v. Heimann, 375 Ill. App. 3d 35, 45 (2007). It is the duty of the
party wishing to assert a limitations defense to raise it at the earliest possible time.
McKinnon v. City of Chicago, 243 Ill. App. 3d 87, 92 (1993). A party who raises a
statute of limitation defense for the first time on appeal may be deemed to have
forfeited the defense. See McKinnon, 243 Ill. App. 3d at 92. Thus, we find, first,
that this issue was waived for our review.
¶ 76 Second, for the reasons described below, even if we found that this issue
was not waived, we would still find that it did not present a bar to plaintiffs'
claims.
¶ 77 The School Code requires a request for a due process hearing to be "filed no
more than 2 years following the date the person or school district knew or should
have known of the event or events forming the basis for the request." 105 ILCS
5/14-8.02a(f) (West 2006); see also 20 U.S.C. § 1415 (f)(3)(C) (2006) (two-year
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limitations period in the absence of state law to the contrary). This limitations
period, however, does not apply where the local educational agency either
specifically misrepresented that it resolved the problem forming the basis of the
parent's complaint, or withheld information from the parent required to be
provided under the statute. 20 U.S.C. § 1415 (f)(3)(D) (2006).7 For example, the
notice of procedural safeguards required to be provided to parents or guardians of
students with disabilities shall include information regarding the time period in
which to make a complaint, the regulations governing due process hearings, and
the availability of a civil action, including the time period for filing such actions.
20 U.S.C. § 1415(d)(2) (2006).
7
Defendants' brief discusses various situations in which reimbursement
may be reduced or denied, none of which appear to be germane to the limitations
defense. See 20 U.S.C. § 1412(a)(10)(c) (2006). Defendant's arguments related to
this provision of the IDEA are directed toward Jenna's participation in the Aspen
Achievement Academy, but plaintiffs' request for reimbursement is limited to
Jenna's placement at Elan.
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¶ 78 The appellate record discloses no record showing that the District provided
notice of the limitations period to Scott before March 31, 2009. The appellate
record demonstrates that the mother, Rona, received a copy of the notice of
procedural safeguards that the District provides to parents and guardians of
students with disabilities in December 2005. Yet the copy of the notice included
in the appellate record does not refer to the two-year limitations period.
Accordingly, the District has failed to demonstrate that the limitations period
began to run before March 2009.
¶ 79 In addition, where a defendant's conduct constitutes a continuing violation
of the IDEA, an action may be timely so long as the last act evidencing the
continuing practice falls within the limitations period. Jeffery Y. v. St. Mary's
Area School District, 967 F. Supp. 852, 855 (W.D. Pa. 1997). In this case, the
District failed to provide adequate notice of the limitations period and contributed
to the delay in revising Jenna's IEP.
¶ 80 Thus, the two-year limitations period in the IDEA does not bar
plaintiffs' action in this case since, first, the issue was waived and, second, the
District failed to notify plaintiffs of the limitations period.
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¶ 81 CONCLUSION
¶ 82 Due to the errors in law described above, we must reverse and remand for a
determination of the appropriate amount of reimbursement.
¶ 83 Reversed and remanded, with directions.
¶ 84 JUSTICE REYES, specially concurring in part and dissenting in part.
¶ 85 The majority opinion, applying the standards typical of administrative
review in Illinois to this appeal, concludes: (1) plaintiffs were not required to
reject or seek a hearing on the IEP existing when Scott placed Jenna in the Elan
school; and (2) the hearing officer committed reversible errors of law in denying
reimbursement to the plaintiffs. I concur with the majority opinion's application of
the standards typical of administrative review in Illinois to the hearing officer's
decision in this case (see supra ¶ 43), its discussion of the IDEA framework
(supra ¶¶ 45-50), and its focus on the issue of whether Jenna received "special
education" as that term is understood in the context of the IDEA (supra ¶ 67). The
majority opinion, however, in imposing a one-sided rule limiting retrospective
testimony in this case, and in reversing the decisions of the hearing officer and the
circuit court denying reimbursement in this case, has otherwise misconstrued the
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record on appeal, the hearing officer's decision, and the relevant case law.
Accordingly, I respectfully dissent from the remainder of the majority opinion.
¶ 86 The Standards of Review in IDEA Cases
¶ 87 Although I concur with the majority opinion's application of the standards
typical of administrative review in Illinois to this appeal, it should be noted that
the IDEA establishes a procedure for judicial review in some respects similar to,
but in other respects significantly different from, the typical procedures for
reviewing the decision of an administrative agency under our Administrative
Review Law (735 ILCS 5/3-101 et seq. (West 2010)). The IDEA, for example,
permits a party to request a court take additional evidence. 20 U.S.C. §
1415(i)(2)(C)(ii) (2006). More significant to this discussion, the IDEA provides
the court is to base its decision on the preponderance of the evidence. 20 U.S.C. §
1415(i)(2)(C)(iii).
¶ 88 Nevertheless, "the provision that a reviewing court base its decision on the
'preponderance of the evidence' is by no means an invitation to the courts to
substitute their own notions of sound educational policy for those of the school
authorities which they review." Board of Education of Hendrick Hudson Central
School District, Westchester County v. Rowley, 458 U.S. 176, 206 (1982). At least
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one federal appellate court holds a virtually de novo review of the administrative
decision is appropriate. See R.P. ex rel. R.P. v. Alamo Heights Independent
School District, 703 F.3d 801, 807 (5th Cir. 2012). The weight of authority,
however, holds a less than de novo review, one similar to the typical standards of
administrative review in Illinois, is appropriate. See, e.g., Board of Education of
Murphysboro Community Unit School Dist. No. 186 v. Illinois State Board of
Education, 41 F.3d 1162, 1167 (7th Cir. 1994); C.C. v. Fairfax County Board of
Education, 879 F. Supp. 2d 512, 517 (E.D. Va. 2012) (and cases cited therein).
The IDEA requires the reviewing court to receive the records of the state
administrative proceedings, which "carries with it the implied requirement that due
weight shall be given to these proceedings." Rowley, 458 U.S. at 206. Thus, when
the court does not take new evidence and bases its review on the record compiled
in the administrative proceedings, the court is required to give "due deference" to
the administrative decision. Dale M. ex rel. Alice M. v. Board of Education of
Bradley-Bourbonnais High School Dist. No. 307, 237 F.3d 813, 815 (7th Cir.
2001). The level of deference due the administrative decision depends in part on
whether the court is considering evidence not presented to the administrative
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hearing officer, with less deference due when new evidence is presented. See id.
at 816.
¶ 89 In this case, the circuit court reviewed the administrative decision on the
parties' cross-motions for summary judgment, which is not uncommon in IDEA
litigation. See id. at 816 (and cases cited therein). The circuit court did not
consider evidence outside the administrative record. Accordingly, I agree the
hearing officer's decision is subject to the typical standards of administrative
review in Illinois.
¶ 90 The IDEA also provides, however, that the district or circuit court "shall
grant such relief as the court determines is appropriate." 20 U.S.C. §
1415(i)(2)(C)(iii). Accordingly, even in cases where a public school placement
violated the IDEA, and the private school placement was proper, the circuit court
then must exercise its "broad discretion" and weigh "equitable considerations" to
determine whether, and how much, reimbursement is appropriate. Florence
County School District Four v. Carter, 510 U.S. 7, 15-16 (1993). The IDEA
further specifies reimbursement may be denied "upon a judicial finding of
unreasonableness with respect to actions taken by the parents." 20 U.S.C. §
1412(a)(10)(C)(iii)(III). The majority opinion acknowledges this aspect of the
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IDEA. Supra ¶ 48. A finding of unreasonableness will not be disturbed absent an
abuse of discretion. See S.W. v. New York City Department of Education, 646 F.
Supp. 2d 346, 363 (S.D.N.Y. 2009).
¶ 91 In this case, the circuit court's decision denying reimbursement was based in
part on a judicial finding that Scott's decision to place Jenna in Elan may have
been reasonable as a parenting decision, but his actions were not reasonable in the
sense intended by the IDEA. The majority opinion does not address this finding,
let alone explain how the circuit court abused its discretion in denying
reimbursement on this basis. See Maynard v. District of Columbia, 701 F. Supp.
2d 116, 124-25 (D.D.C. 2010) (affirming finding parent acted unreasonably in part
because she allowed the defendant school system less than one month to convene
an IEP meeting and develop an IEP for the child during the summer before
deciding to enroll the child in a private placement).
¶ 92 Retrospective Testimony
¶ 93 The majority opinion concludes the hearing officer erred as a matter of law
in considering the retrospective testimony regarding the services Lane Tech could
have offered Jenna, rather than the IEP in place when Scott placed Jenna at the
Elan school. The majority opinion relies on case law ruling an IEP should be
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evaluated as drafted. See R.E. v. New York City Department of Education, 694
F.3d 167, 185-86 (2d Cir. 2012) (and cases cited therein). A review of R.E.,
however, demonstrates why a rule barring retrospective testimony is largely
inapplicable to the circumstances presented in this appeal.8 Moreover, a review of
R.E. demonstrates how the majority opinion's application of the rule is unfair and
skews the reimbursement proceedings in favor of the plaintiffs.
¶ 94 In R.E., the Second Circuit considered three consolidated cases involving
the private placement of autistic children. Id. at 174. In each case, the defendant's
local committees on special education developed IEPs, which were rejected by the
parents of the respective children, whereupon the parents filed a due process
demand seeking tuition reimbursement for a private placement. Id. at 176, 179,
182. The court considered "when, if ever, is it permissible for a district to
8
The majority opinion also cites A.K. ex rel. J.K. v. Alexandria City School
Board, 484 F.3d 672, 682 (4th Cir. 2007). As the Fourth Circuit's decision relies
on "the important policies served by the requirement of a formal written offer"
(id.), the following discussion of R.E. is equally applicable to the rationale offered
in A.K.
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augment the written IEP with retrospective testimony about additional services
that would have been provided at the proposed placement." Id. at 185. The
Second Circuit held "testimony regarding state-offered services may only explain
or justify what is listed in the written IEP," but "may not support a modification
that is materially different from the IEP." Id.
¶ 95 The reasoning of the Second Circuit in R.E. is not discussed in the majority
opinion, but it is crucial to understanding the extent to which the rule it adopted
should apply to this appeal. The Second Circuit looked to decisions of other
federal courts holding the adequacy of an IEP should not be judged in hindsight.
Id. at 185-86. In holding this rule should apply to due process hearings on tuition
reimbursement, the R.E. court explained:
"At the time the parents must choose whether to accept the school district
recommendation or to place the child elsewhere, they have only the IEP to
rely on, and therefore the adequacy of the IEP itself creates considerable
reliance interests for the parents." Id. at 186.
¶ 96 The Second Circuit also reasoned their rule does not unfairly skew the
reimbursement hearing process. Id. at 187. The court noted the mutual nature of
the rule, i.e., parents "cannot later use evidence that their child did not make
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progress under the IEP in order to show that it was deficient from the outset." Id.
The R.E. court further reasoned:
"An important feature of the IDEA is that it contains a statutory 30-
day resolution period once a 'due process complaint' is filed. 20 U.S.C. §
1415(f)(1)(B). That complaint must list all of the alleged deficiencies in the
IEP. [footnote omitted] The [defendant] then has thirty days to remedy
these deficiencies without penalty. If, at the end of the resolution period,
the parents feel their concerns have not been adequately addressed and the
amended IEP still fails to provide a FAPE, they can continue with the due
process proceeding and seek reimbursement. The adequacy of the IEP will
then be judged by its content at the close of the resolution period." Id. at
187-88.
The court additionally noted:
"The parents must state all of the alleged deficiencies in the IEP in
their initial due process complaint in order for the resolution period to
function. To permit them to add a new claim after the resolution period has
expired would allow them to sandbag the school district. Accordingly,
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substantive amendments to the parents' claims are not permitted." Id. at 187
n.4.
The Second Circuit concluded this resolution procedure eliminated the danger that
parents could seek reimbursement based on alleged deficiencies in an IEP which
the parents had not previously claimed were deficiencies. Id. at 188. In short, the
R.E. court adopted a rule limiting retrospective testimony based on the reliance
interest parents have in an existing or proposed IEP, which is in turn based on the
existence of a statutory procedure for addressing parental complaints regarding
that IEP.
¶ 97 In this case, the reasons for limiting retrospective testimony propounded by
the Second Circuit are themselves limited. The majority opinion asserts Lane
Tech prevented Scott "from expressing his concerns at an IEP meeting by refusing
to convene one." Supra ¶ 60. This characterization of the record on appeal is not
entirely accurate. The record establishes that in early June 2006, when Scott
contacted Martinez for the purpose of arranging and financing long-term plans for
Jenna, Martinez informed him the IEP Team could not be convened given they
were at the end of the school year, but to remain in contact to address these issues.
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Defendants did not completely foreclose any IEP meeting regarding the 2007-08
school year.
¶ 98 Moreover, even assuming arguendo that defendants refused to convene an
IEP meeting in response to Scott's informal telephonic request, plaintiffs' concerns
regarding reimbursement necessarily related to the 2006 IEP. Yet plaintiffs did
not avail themselves of the legally required procedures for lodging a complaint
regarding the provision of a FAPE to Jenna under the 2006 IEP prior to placing
Jenna at the Elan school. Had plaintiffs sought a speedy resolution of their
concerns, they could have legally forced defendants to either address their specific
concerns regarding the 2006 IEP or proceed to the issue of tuition reimbursement.
Instead, Scott chose to work with defendants regarding the formulation of a new
IEP for Jenna – a process which, for a variety of reasons potentially attributable to
both sides – extended from November 2006 through March 2009.
¶ 99 Plaintiffs did not file a due process complaint until after the formulation of
the March 2009 IEP. Although the filing of the due process complaint is
undisputed, neither plaintiffs nor defendants has identified where the due process
complaint appears in the record or discuss any specific objections to the March
2009 IEP. The District's pre-hearing disclosure statement asserts the due process
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complaint failed to specify which aspects of the March 2009 IEP were
inappropriate for Jenna's needs. Indeed, absent the due process complaint, this
court is also not informed of the particular objections to the 2006 IEP, beyond
plaintiffs' demand for reimbursement.
¶ 100 Based on the record here, the only possible reliance interest Scott could
have is in the March 2009 IEP. That reliance interest, however, would not extend
to reimbursement for Jenna's placement at Elan prior to March 2009. As Scott had
no reliance interest in the 2006 IEP and plaintiffs chose not to avail themselves of
the formal procedures for challenging the 2006 IEP, the Second Circuit's
reasoning for limiting retrospective testimony in R.E. does not apply to the bulk of
the complaint in this case.
¶ 101 Furthermore, the majority opinion fosters a form of the unfairness the R.E.
court was careful to avoid. The adequacy of the IEP can only be determined as of
the time it is offered to the student, not at some later date. See Rowley, 458 U.S. at
206-07; R.E., 694 F.3d at 187; Fuhrmann ex rel. Fuhrmann v. East Hanover
Board of Education, 993 F.2d 1031, 1039-40 (3d Cir. 1993). Under the majority
opinion, however, all a parent is procedurally required to do in order to obtain
tuition reimbursement is express his or her concerns informally by telephone and
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file the statutorily-required 10-day notice. A parent then may wait years to lodge a
formal complaint raising concerns which may have been possible to address
previously, but which may be impossible to address at a later time. In the ensuing
due process proceedings, the majority opinion bars the school from introducing
evidence regarding what it may have done to respond to a timely formal
complaint, while permitting the parent to rely on the child's prior lack of progress
to attack a years-old IEP.9 There is nothing in the Second Circuit's carefully-
reasoned opinion in R.E. justifying this unfair application of the rules of evidence.
See R.E., 694 F.3d at 186-88.
9
Indeed, the hearing officer's ruling that the March 2009 IEP was
inadequate is largely based on Jenna's prior lack of progress at Lane Tech. If the
hearing officer had been aware this court would impose a rule limiting
retrospective testimony, it is possible the officer would have reached a different
conclusion on this issue.
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¶ 102 The Hearing Officer's Decision
¶ 103 As previously noted, I concur with the majority opinion insofar as it holds
the traditional standards of administrative review apply to the review of the
hearing officer's decision in this case. Accordingly, we do not review the
propriety of the reasoning underlying the decision; rather, we review the decision
itself. Boaden v. Department of Law Enforcement, 267 Ill. App. 3d 645, 652
(1994). Indeed, this court can affirm an administrative decision for any reason the
record discloses, regardless of whether the decision relied on that reason. See,
e.g., Illinois Dept. of Central Management Services (State Police) v. Illinois Labor
Relations Board, State Panel, 382 Ill. App. 3d 208, 221 (2008) (and cases cited
therein); see Gernand v. Illinois Commerce Comm'n, 286 Ill. App. 3d 934, 943
(1997) (rule permitting this court to search the record to affirm, regardless of
whether the basis was relied upon by the trial court and regardless of whether the
reason given was correct, applies to administrative review).
¶ 104 The majority opinion holds the hearing officer erred as a matter of law in
stating the question he had to answer was: "Did the Elan School Provide Jenna
With FAPE in the LRE?" Supra ¶ 69. I concur that the services provided by the
Elan school are not legally required to meet the statutory definition of a FAPE.
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See Carter, 510 U.S. at 13. The majority opinion's analysis of the issue effectively
ends here, without determining whether the decision is otherwise correct.
¶ 105 Despite its initial statement of the issue, the hearing officer's decision never
faults the Elan school's services for failing to meet the statutory definition of a
FAPE. Instead, the hearing officer wrote:
"In determining whether a parent's unilateral placement is reasonably
calculated to enable the child to receive educational benefits, the court must
look at the totality of the circumstances, including, but not limited to,
grades, test scores and regular advancement. Gagliardo v. Arlington
Central School District, 489 F.3d 105 (2d Cir. 2007)."
The relevant passage in Gagliardo relies on Frank G. v. Board of Education of
Hyde Park, 459 F.3d 356, 364-65 (2d Cir. 2006), and M.S. ex rel. S.S. v. Board of
Education, 231 F.3d 96, 104 (2d Cir. 2000). Gagliardo, 489 F.3d at 112 (and
cases cited therein). The majority opinion similarly relies on Frank G. and M.S.
Supra ¶¶ 67-68. As the hearing officer's subsequent references to a FAPE deal
exclusively with the issue of whether Lane Tech provided one to Jenna, a careful
reading of the hearing officer's decision suggests he in fact applied the same law
as the majority opinion on this point.
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¶ 106 A careful reading of the hearing officer's decision also establishes the
majority opinion has misconstrued the hearing officer's discussion of the LRE.
Like the circuit court, the majority opinion states the hearing officer "focused
exclusively on whether Elan met the LRE requirement." Supra ¶ 70. The plain
language of the hearing officer's decision establishes the contrary.
¶ 107 Although the hearing officer's decision states "[t]he chief problem with the
Petitioner's case is the failure to comport with an equally significant portion of the
IDEA, namely that placement be in the least restrictive environment," the decision
proceeds to state:
"Though parent's failure to place Jenna in the "least restrictive
environment" possible is not necessarily a bar to tuition reimbursement, it is
a factor which the Hearing Officer may consider. M.S. vs. Bd. of Educ., 231
F.3d [sic] 96, 102 (2000)."10
10
Again, the hearing officer relied on the same case law as the majority
opinion on this point. Supra ¶ 70. The majority opinion alternatively relies on
case law holding a court cannot determine whether a private placement is the LRE
where the school district fails to provide a child with an adequate plan. See supra
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Thus, the hearing officer recognized he could not exclusively rely on the LRE
factor.
¶ 108 The hearing officer's decision also establishes he did not, in fact, rely on the
LRE factor as the sole reason for denying reimbursement in this case. When the
hearing officer wrote the LRE was an "equally significant portion of the IDEA,"
he was comparing it to his prior discussion of the rule that:
"Even where there is evidence of success, a Courts should not disturb
a State's denial of IDEA reimbursement where, as here, the chief benefits of
the private school would be preferred by parents of any child, disabled or
not. See Gagliardo, above."
At this juncture, it is worth quoting the relevant passage from Gagliardo:
¶¶ 71-73. For the reasons already explained in discussing the admissibility of
retrospective testimony, the majority opinion's reliance on the failure to provide a
plan depends upon mistaking a request to defer an IEP meeting as a refusal to
provide a plan and considering a parent's concerns expressed informally in a
telephone call as the equivalent of the statutory procedures required by the IDEA.
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"We finally add a word about the position a district court finds itself
in where, as here, it is called upon to review a case in which parents have
enrolled their disabled child in a private school, believing it to be the best
thing for the child, and can point to their child's record of success at the
school they chose. It is understandable that a district court would be
receptive to parents under these circumstances; a child's progress is relevant
to the court's review. But such progress does not itself demonstrate that a
private placement was appropriate. See Berger v. Medina City Sch. Dist.,
348 F.3d 513, 522 (6th Cir. 2003) ("[E]vidence of academic progress at a
private school does not itself establish that the private placement offers
adequate and appropriate education under the IDEA."); Rafferty v. Cranston
Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002) (same). Indeed, even
where there is evidence of success, courts should not disturb a state's denial
of IDEA reimbursement where, as here, the chief benefits of the chosen
school are the kind of educational and environmental advantages and
amenities that might be preferred by parents of any child, disabled or not. A
unilateral private placement is only appropriate if it provides "education
instruction specifically designed to meet the unique needs of a handicapped
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child." Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89, 102
S. Ct. 3034) (emphasis added)." Gagliardo, 489 F.3d at 115.
The majority opinion holds a small class size, such as those offered at Elan,
"can be 'one element of the special education services' needed for a child." Supra
¶ 66 (citing Frank G., 459 F.3d at 365). The Second Circuit's decision in Frank
G., however, specifically avoided holding small class size alone was sufficient to
render the private placement at issue appropriate, because the teacher in that case
adapted her instruction to meet the child's specific needs. Frank G., 459 F.3d at
365.
¶ 109 In this case, neither plaintiffs nor the majority opinion has identified how
the Elan school's program was specifically designed or adapted to meet Jenna's
unique needs. Indeed, Hawkins testified she never conducted a formal evaluation
or assessment of Jenna. Supra ¶ 23. Accordingly, the hearing officer could
reasonably conclude the services Elan offered were those of a kind which might be
preferred by parents generally, but not warranting reimbursement under IDEA in
this case. This failure of proof alone is sufficient to sustain the hearing officer's
decision.
¶ 110 The hearing officer's analysis, however, went further:
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"It appears to the Hearing Officer that Jenna's emotional problems
manifested themselves in high risk behaviors outside of school, in the
community, and were not necessarily the school's concern. The evidence
indicated that much of Jenna's problems (absences) stemmed from parent-
child management issues. It is not necessarily the school's duty to provide a
residential placement for a child who does not listen to her parents and is a
chronic runaway, for psychological reasons unrelated to the school."
Indeed, after discussing whether the Elan school was the LRE for Jenna, the
hearing officer returned to a related point:
"Furthermore, the placement must be for educational reasons. Time
and time again, the Petitioner repeatedly stated at the Hearing that he was
concerned about the Student's 'safety and security'. While naturally these
are concerns any father would have for his daughter, they are not necessarily
the school district's concerns, where, as in this case, the student's primary
disability was emotionally based, rather than learning based (although she
did have a secondary classification of a non-verbal learning disorder, her
standardized test scores and grades at Elan showed that Jenna was quite
capable of learning in a highly-structured environment)."
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Although unmentioned by the hearing officer, federal appellate courts have
differed in their approaches to residential placements under IDEA and its
predecessor, particularly where the child's disability is primarily medical, social or
emotional. See generally Jefferson County School Dist. R-1 v. Elizabeth E. ex rel.
Roxanne B., 702 F.3d 1227, 1232-34 (and cases discussed therein), aff'd 702 F.3d
1227 (10th Cir. 2012). Of particular note is Dale M., in which the Seventh Circuit
ruled the parents were not entitled to reimbursement for placing their child at the
Elan school after his release from jail because the purpose of the placement was
confinement, which the court concluded is not a "related service" under the IDEA
as a matter of law. See 237 F.3d at at 816-17.11 The majority opinion does not
expressly adopt any of the approaches taken by federal appellate courts to this type
of case. To the extent the majority opinion focuses on whether the placement
provided "special education," as that term is defined by the IDEA, its approach is
consistent with the Tenth Circuit's approach (see Jefferson County School Dist.
11
The record in this case establishes the Elan school provided more than
confinement, even if plaintiffs ultimately failed to prove the Elan school's program
was specifically designed or adapted to meet Jenna's unique needs.
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R-1, 702 F.3d at 1235) and to that extent I concur with the majority opinion's focus
on the statutory text, if not its interpretation of that text.
¶ 111 In sum, although I partially concur in the majority opinion's discussion of
the standard of review and its focus on the statutory text, I conclude the adoption
of a rule limiting retrospective testimony by the defendants is inappropriate
regarding reimbursement prior to March 2009, and unfairly applied solely against
the defendants. Moreover, any error of law in the hearing officer's decision does
not preclude this court from affirming the denial of reimbursement, based on the
reasons actually provided by the hearing officer. In particular, I conclude
plaintiffs failed to prove the Elan school's program was specifically designed or
adapted to meet Jenna's unique needs. Lastly, the majority opinion fails to address
the circuit court's finding of unreasonableness with respect to actions taken by the
parents. For all of the aforementioned reasons, I respectfully dissent.
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