United States District Court, M.D. Tennessee, Nashville Division
L.H., by his parents, D.R. and G.H., Plaintiff,
TENNESSEE DEPARTMENT OF EDUCATION, Defendant.
A. TRAUGER UNITED STATES DISTRICT JUDGE.
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.
The IDEA, Parental Consent, and Private
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,
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).
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).
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.
L.H.'s Withdrawal from Public School
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.” (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. 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.
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.
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.)
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.
The Individualized Education Act and L.H.'s Application
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 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).
order to qualify for the IEA program, a child must meet the
a child with any of the following disabilities as defined by
the state board of education pursuant to § 49-10-102:
(iii) Hearing impairments;
(iv) Intellectual disability;
(v) Orthopedic impairments;
(vi) Traumatic brain injury;
(vii) Visual impairments;
(viii) Developmental ...