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Private Placement


Case citation:  FortBendISDv. Z.A., 114 LRP 5028 (S.D. Tex. 2014).

Summary:  Z.A. attended school in the Fort Bend Independent School District and was eligible for special education services as a student with an Emotional Disturbance (ED) and Other Health Impairment (OHI).  Z.A. was born in Russia and abandoned when he was four months old.  He lived in a Russian orphanage until he was four years old, when he was adopted and brought to the United States.  Initially, while a student in Fort Bend ISD, Z.A. received accommodations under Section 504 for Attention Deficit Hyperactivity Disorder (ADHD) and depression, among other things.

In eighth grade, the middle school principal observed Z.A. to be less engaged and was observed by a teacher to be under the influence of marijuana.  He later admitted to smoking marijuana occasionally.  Later that year, he posted messages on Facebook indicating that he may harm himself.  At one point at school, he admitted to taking some pills he found at home.  He was later hospitalized and returned to school several days later.  Following the hospitalization, Z.A.’s Section 504 Committee met and pro- vided Z.A. with several accommodations.  At the time, Z.A. was not passing several of his classes.  The Section 504 Committee concluded that Z.A. was capable of completing assignments but chose not to.   He was provided preferential seating, re-teaching of concepts, small group instruction, parent-initiated email, and teacher/peer helpers.  The parents requested additional emotional and behavioral testing and a referral for special education evalua- tion was made in April of 2012.  However, consent for the special education evaluation was not provided to the parents until June of 2012.  Meanwhile, Z.A.’s work refusals and attendance worsened.

The district completed Z.A.’s Full Individual Evaluation (FIE) in August of 2012. The FIE revealed severe depressive symptoms in areas associated with a lack of engagement in pleasant activities, reduced motivation and effect, along with irritability, boredom and complaints of significant physical illness.

On August 23, 2012, the student’s Admission, Review and Dismissal (ARD) Committee reviewed the FIE, a psychological evaluation, and OHI evaluation, all dated August 10, 2012, as well as school records, and parent information.  Based on the information presented, the student’s ARD Committee concluded that the student’s behavior impeded the learning of the student and others; significantly interfered with student’s ability to meet general academic mastery levels; and affected the student’s involvement and progress in the general curriculum.  A Behavior Intervention Plan (BIP) was developed to address the student’s failure to complete school work.   The ARD Committee placed the student in the general education setting with in-class support services provided by a special education teacher.  The ARD also provided the student with psychological services for sixty minutes, one time per week for nine weeks.

Z.A.’s problems, however, continued and the school psychologist only met with Z.A. once, instead referring Z.A. to a drug counselor.  No other services or interventions were recommended.  The student’s treating therapists later confirmed diagnoses of a generalized anxiety disorder, ADHD, cannabis dependence with physiological dependence, and major depressive disorder, moderate, single episode.

The parents later withdrew Z.A. from the district, and requested an ARD Committee meeting in November of 2012, seeking reimbursement for a private placement.   On November 19, 2012, the ARD Committee reviewed student’s FIE and other assessments, but declined to change the student’s program or authorize reimbursement for the private placement.   The ARD meeting ended in disagreement.  The parents requested a due process hearing urging their request for a private, residential placement at district expense.  The hearing officer held that the student was entitled to reimbursement of education-related expenses of the residential placement for one year.   [See, Student v. Fort Bend ISD, Dkt. No. 076-SE-1112 (Hearing Officer Stephen Webb, April 3, 2013); Texas School Administrators’ Legal Digest, Nov./ Dec. 2013].   The school district then filed suit challenging the hearing officer’s decision.

Ruling:  The trial court affirmed the hearing officer’s decision to provide Z.A. a residential placement at district expense, sub- ject to the limitations provided by the hearing officer.  The trial court held that Z.A.’s IEP was not individualized on the basis of his assessment and performance.   The IEP did not address Z.A.’s symptoms of depression and anxiety in any meaningful way.  For example, it did not contain strategies for dealing with Z.A.’s anxiety and depression in the classroom setting.  Instead, the IEP continued the same interventions that had been used in his prior Section 504 plan, even though it had been acknowledged that those interventions had not been working.  Further, although the IEP granted Z.A. psychological services, the psychologist provided him with only one session and referred Z.A. to a drug counselor instead.

The trial court also concluded that the district program did not offer Z.A. education in the least restrictive environment, in that the IEP did not provide Z.A. with sufficient services to be successful in the general education setting.   Further, the district did not act in a collaborative or coordinated manner in several ways, according to the trial court.  For example, information obtained during Z.A.’s FIE concerning suicidal ideations was not shared with the parents.  Although both parties did not fully disclose all relevant information, the trial court concluded that the district’s actions in withholding information and unilaterally terminating psychological services violated the IDEA and resulted in a denial of academic and non-academic benefits.  Thus, the hearing officer correctly concluded that the district’s program for Z.A. denied him FAPE.

Further, the residential placement requested by the parents provided Z.A. FAPE. According to the trial court, it was “primarily oriented toward enabling Z.A. to obtain an education.” The hearing officer also properly separated the amount owed to the parents to include only education-related expenses.  The fact that the parents failed to provide notice of their intent to withdraw Z.A. from the district and seek reimbursement did not render the reimbursement improper.  The hearing officer reduced the reimbursement amount and limited it to one year.  The trial court upheld the hearing officer’s decision in favor of the student.

Comments:  The court made an interesting ruling on the LRE issue, holding that the district failed to provide sufficient support services for the student to be successful in the mainstream classroom. Thus, the student was in a less restrictive environment, but the court held that it was insufficiently supported.