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L.H. v. Tennessee Department of Education

United States District Court, M.D. Tennessee, Nashville Division

November 12, 2019

L.H., by his parents, D.R. and G.H., Plaintiff,



         Pending before the court is a Motion to Dismiss filed by the Tennessee Department of Education (“TDOE”). (Docket No. 11.) L.H., by and through his parents, D.R and G.H., has filed a Response (Docket No. 14), and the defendants have filed a Reply (Docket No. 18), to which L.H. has filed a Surreply (Docket No. 21). For the reasons stated herein, TDOE's motion will be granted.

         I. BACKGROUND[1]

         A. The IDEA, Parental Consent, and Private Schooling

         The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., “offers federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education'-more concisely known as a FAPE-to all children with certain physical or intellectual disabilities.” Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 748 (2017) (citing 20 U.S.C. §§ 1401(3)(A)(i), 1412(a)(1)(A)). The IDEA “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as [non-disabled] children, but the Act also provides for placement in private schools at public expense where this is not possible.” Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 369-70 (1985) (citing 20 U.S.C. § 1412(5); 34 C.F.R. §§ 300.132, 300.227, 300.307(b), 300.347)).

         Although the IDEA requires a participating state to make a FAPE available to every qualifying child, it also recognizes that the ultimate authority to consent to or reject special education and related services lies with a child's parent or guardian. See 20 U.S.C. § 1414(a)(1)(D)(ii). The Act requires that “[a]n agency that is responsible for making a free appropriate public education available to a child with a disability . . . shall seek to obtain informed consent from the parent of such child before providing special education and related services to the child.” 20 U.S.C. § 1414(a)(1)(D)(i)(II). “If the parent of such child refuses to consent to services . . ., the local educational agency shall not provide special education and related services to the child” within the IDEA framework, and the agency “shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child.” 20 U.S.C. § 1414(a)(1)(D)(ii)(II), (III)(aa).

         The question of parental consent becomes more complicated, however, when a child's parents do wish the child to receive services under the IDEA but disagree with school officials about what those services should be or how they should be provided. “The IDEA establishes procedures by which school officials, parents, and the student can collaborate to create” an individualized education program, or “IEP, ” that takes into account the unique needs of the child. Long v. Dawson Springs Indep. Sch. Dist., 197 Fed.Appx. 427, 432 (6th Cir. 2006) (citing 20 U.S.C. §§ 1401(11), 1414(d); Town of Burlington, 471 U.S. at 368). Still, however, members of the “IEP team, ” as that collaborative group is known, sometimes have irreconcilable differences that the ordinary IEP process cannot resolve. “The IDEA . . . provides for administrative procedures to resolve disputes when the people involved in the creation of an IEP are not able to agree on its substance.” Id. (citing 20 U.S.C. § 1415(b)); see 20 U.S.C. § 1415(b)(6), (f)-(g), (k). If, at the end of the administrative process, the parties still disagree, then any party can seek review “in any State court of competent jurisdiction or in a district court of the United States.” 20 U.S.C. § 1415(i)(2)(A); see also S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 633, 642-43 (6th Cir. 2008).

         That administrative/judicial review process, however, takes time, and there is no way to simply pause a child's education and development while his case works its way through an administrative appeal and, if necessary, the courts. The Supreme Court has therefore recognized that a parent who challenges his or her child's IEP may, in the meantime, “unilaterally withdraw their child from [the] public school . . . and put the child in a private school that provides an” IDEA-appropriate education, for which the parent may seek reimbursement from the educational agency as part of its IDEA case. Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 9 (1993). Parents who make that decision, however, do so “at their own financial risk.” Id. at 15 (quoting Town of Burlington., 471 U.S. at 373-74). If the courts end up concluding that the parent was mistaken and that the school's chosen course of action would have satisfied the state's IDEA obligations, or if the court concludes that the private school placement itself was inappropriate, then the parent will remain on the hook for the cost of the private education. If, however, the child and his parent prevail on their IDEA claim, then the court can, if appropriate, order that the responsible educational agency or agencies reimburse the parent for the out-of-pocket cost of obtaining an IDEA-appropriate education outside of the public school system. Id. at 15-16.

         B. L.H.'s Withdrawal from Public School

         L.H. is a ninth grader who lives in Hamilton County, Tennessee. He has Down Syndrome. (Docket No. 1 ¶¶ 1, 7.) According to his Complaint, he “was wrongfully excluded from his mainstream classroom beginning in the 2012-2013 school year.”[2] (Id. ¶ 7.) More details of his case can be found in L.H. v. Hamilton County Department of Education, 900 F.3d 779 (6th Cir. 2018), which involved claims L.H. brought in the Eastern District of Tennessee.[3] According to that opinion, L.H. was a student at Normal Park Elementary School, a public school operated by the Hamilton County Department of Education (“HCDE”), from 2009 to 2013. Id. at 785. While L.H. was at Normal Park, his parents worked with the rest of his IEP team to craft his annual IEPs. Id. For L.H.'s first three years at Normal Park, which consisted of kindergarten followed by two years in first grade, L.H. progressed but did not keep pace with his same-grade-level non-disabled peers. Id. In May 2012, “some HCDE staff suggested moving L.H. to a Comprehensive Development Classroom (CDC), an isolated class comprising solely special-education students and located at a different school.” Id. L.H.'s parents resisted the suggestion, and he advanced to second grade, remaining in a general education classroom alongside non-disabled peers. Id.

         L.H. struggled in second grade, and HCDE intensified its push to move him to the CDC, eventually “insist[ing]” on the placement. Id. at 786. L.H.'s parents continued to resist. Id. Finally, in May 2013, HCDE finalized an IEP for the coming year that placed L.H. in the CDC over his parents' strenuous objections. Id. The Sixth Circuit provides a lengthy discussion of the significant qualitative differences between the education L.H. would receive at the CDC versus the education he would have received at Normal Park. Id. at 786-87. Rather than accepting L.H.'s placement in a segregated classroom, his parents withdrew him from Hamilton County public schools and enrolled him in the Montessori School of Chattanooga. Id. at 787. They also filed an administrative challenge to L.H.'s IEP, followed by a federal court lawsuit in the Eastern District of Tennessee.

         L.H.'s complaint in this prior action apparently originally named both TDOE and HCDE as defendants. TDOE has provided a Settlement Agreement and Release entered into by TDOE and L.H.'s parents in August of 2015. (Docket No. 18-1.) Pursuant to that agreement, TDOE agreed to pay L.H. and his parents $185, 000. (Id. at 1.) In return, L.H. and his parents agreed that they “forever settle, release, compromise, reach accord and satisfaction, waive, remise, discharge, and acquit DOE . . . on each and every claim that exists as of the effective date of this Agreement, whether known or unknown, or which Plaintiffs at any time hereafter may have against TDOE as of the execution of this Agreement, including but not limited to those claims made or that could have been made” in the Eastern District lawsuit. (Id. at 2.)

         L.H. and his parents continued to pursue their claims against HCDE. “After years of dispute and litigation”-during which L.H. remained at the Montessori school-the district court held that L.H.'s proposed placement in the CDC violated the IDEA but denied his parents reimbursement for his Montessori tuition. L.H., 900 F.3d at 784 (discussing L.H. v. Hamilton Cty. Dep't of Educ., No. 1:14-CV-00126, 2016 WL 6581235, at *1 (E.D. Tenn. Nov. 4, 2016)). Both parties appealed. The Sixth Circuit rejected various arguments by HCDE that the district court had erred in holding that it had violated the IDEA. Id. at 788-96. With regard to the plaintiffs' appeal, the Sixth Circuit acknowledged the rule that

[p]arents who unilaterally move a child to a private school in response to an unacceptable IEP get reimbursement pursuant to the IDEA only upon a finding that both (1) the public school violated the IDEA and (2) the private school is appropriate under the IDEA. The private school need not meet full public school IDEA standards, but it must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” . . . . “[A]t a minimum, ” the private school must “provide some element of special education services in which the public school placement was deficient”; for example, specific special-education programs, speech or language therapy courses, or tutoring services.

Id. at 796 (citing 34 C.F.R. § 300.148; Florence Cty., 510 U.S. at 15; quoting Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th Cir. 2003)). The appellate court concluded that L.H.'s parents had satisfied the requirements for receiving reimbursement. It reversed the district court in that regard and remanded the case. Id. at 788-89. On November 11, 2018, the district court ordered HCDE to reimburse L.H.'s parents $103, 274.00. L.H. v. Hamilton Cty. Dep't of Educ., No. 1:14-CV-00126, 2018 WL 6069161, at *4 (E.D. Tenn. Nov. 20, 2018).

         C. The Individualized Education Act and L.H.'s Application to Participate

         Meanwhile, the Tennessee General Assembly enacted the “Individualized Education Act” (“IEA”), Tenn. Code Ann. §§ 49-10-1401 to -1406, in 2015. The IEA allows the parents of a qualifying disabled child to apply for an “individualized education account, ” which can be used to pay for tuition at a participating school[4] and related expenses. Tenn. Code Ann. § 49-10-1403(b). A parent who receives an account must, however, sign an agreement promising:

(1) To provide an education for the participating student in at least the subjects of English language arts, mathematics, social studies, and science; and
(2) Not to enroll the parent's eligible student in a public school during participation in the IEA program and to release the [local educational agency] in which the student resides and is zoned to attend from all obligations to educate the student. Participation in the program shall have the same effect as a parental refusal to consent to the receipt of services under 20 U.S.C. § 1414 of the Individuals with Disabilities Education Act (IDEA).

Tenn. Code Ann. § 49-10-1403(a).

         In order to qualify for the IEA program, a child must meet the following requirements:

         (A) Is a child with any of the following disabilities as defined by the state board of education pursuant to § 49-10-102:

(i) Autism;
(ii) Deaf-blindness;
(iii) Hearing impairments;
(iv) Intellectual disability;
(v) Orthopedic impairments;
(vi) Traumatic brain injury;
(vii) Visual impairments;
(viii) Developmental ...

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