Recently, the Ninth Circuit Court affirmed the United States District Court for the Central District of California's decision in CB v. Garden Grove Unified School District (2009). This case (hereinafter "Garden Grove") addresses the issue of parent reimbursement for placement of a special education student at a non-public agency. The affirmation solidified further the rights of parents to be repaid when a public school district does not offer a Free and Appropriate Public Education (FAPE).
It is yet to be seen whether this decision will be appealed to the United States Supreme Court, but for now, Garden Grove stands for/reconfirms the following propositions:
1) If a District fails to provide FAPE, full reimbursement may be sought by the parents.
2) Such reimbursement may be sought even if the parents place a student with a non-public agency, rather than a non-public school.
3) The test for reimbursement of a private placement hinges on whether the placement was "reasonably calculated to provide ...educational benefit" not the location of the placement. (655 F.Supp.2d at 1099)
4) To prove a denial of FAPE, procedural errors are not enough unless they impeded the student's right to FAPE, caused a deprivation of educational benefits, or significantly impeded the parents' opportunity to participate in the IEP process (Garden Grove decision quoting 20 United States Code section 1415(f)(3)(E), 655 F.Supp.2d 1093).
5) No IEP violation may be shown unless there is a material failure to implement the IEP, (Garden Grove quoting VanDuyn v. Baker, 9th circuit 2007, Id.).
6) Lack of FAPE in this case was shown by the following:
- Failure to provide speech and language services (SLS) as required by an IEP.
- Failure to develop goals to address auditory processing needs and anxiety.
- Failure to include Occupational Therapy (OT) services in the placement offered.
- Failure to include general education time as the student's offered placement was to be in a more restrictive setting (special day class- SDC).
- Failure to explain why a SDC was more appropriate than the previous placement.
The Ninth Circuit's upholding of the Garden Grove decision is one more positive mark for parents and students. It supports parents rights to place a special needs student in private school and seek reimbursement if FAPE is not offered by the public school district.
Seeking reimbursement can be a risky proposition, and had the family not won, they would have been out the entire tuition cost (over $40,000), so be sure you dot your i's and cross your t's, as they say, prior to moving to that realm. However, if they mess up and you proceed wisely, you may be able to get paid back for a private school placement you make.
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814