School administrators, we are willing to bet you have experienced several contentious IEP meetings during your career. If we were to guess the percentage of those contentious IEP meetings that focused on placement questions, we are going to guess approximately 50%. Discussions regarding placement are often emotion-filled from the perspective of the parents and budget conscious from the perspective of the district. However, if the IEP team fails to consider the data and options available for the placement of a student, it can result in costly litigation for the district. Recently, the Chamberlain School District was ordered to reimburse parents $90,000 (plus attorney’s fees) for failing to develop an appropriate IEP for a student, which included the student’s placement.
In this case, the Chamberlain School District had a student who qualified for special education services. The student’s health conditions caused him to exhibit many behaviors such as shouting, swearing, cheating, disobeying the rules, and sexualized conduct.
Because of all these behaviors, the school changed the student’s placement to homebound in January of his junior year. The student was supposed to receive education from recorded videos and Google classroom. However, there was a communication breakdown between the general education and special education teachers which resulted in the failure to upload content for the student. In April, the parents contacted the District about possibly changing the student’s placement to a residential facility in Utah. However, the District was unenthused about this option, as it would not receive Medicaid funds for the costs associated with the student’s attendance. As of May, the District had no plans on how to provide the student with educational services for his senior year. In August, the parents unilaterally placed the student at the facility in Utah and sued for tuition reimbursement.
A due process hearing was filed where the hearing officer determined the District failed to provide the student with a free appropriate public education (“FAPE”) by failing to develop an IEP for the 2019-2020 year, failing to provide a FAPE for the 2018-2019 year, and failing to develop behavior plan. The hearing officer stated: “As the evidence shows, the home placement was not working and was not providing a FAPE for [the student. The school district’s administration] knew that [the student] could not be placed within the school and the home placement was not working.” The hearing officer ordered the District to pay the cost of the private school tuition.
The District appealed the hearing officer’s decision. The South Dakota Federal District Court affirmed the hearing officer’s decision. The District appealed the District Court decision to the Eighth Circuit Court of Appeals. On appeal, the District lost, and the lower court decision was affirmed. [If you are counting, that is three losses for the District.]
Because this case was litigated in the Eighth Circuit, which governs federal law in both Nebraska and South Dakota, it is crucial our school administrators understand the following:
Placement decisions cannot be decided simply based on cost alone. It is not appropriate to deny a placement request because the District cannot afford the placement, or Medicaid won’t reimburse for the placement.
Communication between special education staff and general education staff is crucial, especially for students who are homebound. All individuals responsible for implementing a student’s IEP must be informed of and understand their responsibilities.
If a student’s behaviors, including sexualized behaviors, impede learning, it may be appropriate to conduct a Functional Behavioral Assessment and implement a Behavior Intervention Plan. Additionally, it may be appropriate to convene the IEP team and consider potential goals or strategies, such as specialized curriculum, to address sexualized behaviors.
The District is ultimately responsible for providing a student with a free appropriate public education.
If you have any questions regarding placement or special education matters, please do not hesitate to contact us at ksb@ksbschoollaw.com or give us a call at 402-804-8000.