School was an appropriate placement for Marc. Pursuant to Burlington, they therefore assert that DCPS should reimburse them for the tuition paid to the Somerset School pending the challenge of the agency's decision. For the reasons which follow, we disagree.
A. January 11, 1990 to February 15, 1992
To begin with, we find that plaintiffs are ineligible for reimbursement of tuition payments following the Hearing Officer's determination of January 11, 1990, because, from that point on, plaintiffs were in a different posture procedurally from the parent challenging the placement in Burlington.
In Burlington, the local agency had selected a placement which plaintiffs appealed through a due process hearing and, ultimately, to the district court. The court agreed that the agency's selection was inappropriate and the father's selection was "proper under the Act." In this situation, the Supreme Court held that the Act authorized reimbursement because "it would be an empty victory to have a court tell them several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials." Id. at 370.
In the case before us, however, the Fagans have not presented us with an allegedly invalid DCPS placement. Rather, the Hearing Officer in this case ruled in a written determination of January 11, 1990, that the DCPS placement was void as a result of procedural defects in the IEP. The Officer put the burden on the Fagans to contact DCPS within a certain time period if they wanted to develop a new IEP.
Plaintiffs, however, failed to so notify DCPS.
Reimbursement is inappropriate after the Hearing Officer's ruling, then, because the Fagans were primarily to blame for the failure to develop a new IEP. They chose, instead, to avoid further cooperation with DCPS, essentially rejecting further opportunities to obtain a "free and appropriate public education" through IDEA procedures.
We find this situation to be far more akin to the parent who rejects the DCPS placement and unilaterally sends the child to the private school of his or her own choice, than to the Burlington situation where the parent sends the child to private school pending appeal of an agency placement. As mentioned above, when a parent pursues the first alternative, rejecting efforts to work with the agency, the parent must do so at his or her own expense. See 34 C.F.R. § 300.403(a)(1992).
B. July 26, 1989 through January 11, 1990
There is, of course, the narrower question of whether the Fagans should be reimbursed during the time DCPS was solely at fault in failing to produce an adequate IEP. Numerous cases have established that reimbursement is appropriate for the period in which the local agency failed to abide by the statutory procedures in the IDEA. See. e.g., Block v. District of Columbia, 748 F. Supp. 891 (D.D.C. 1990) (holding that parents must be reimbursed for period in which DCPS had failed to timely produce an IEP). In this case, DCPS repeatedly failed to include Dr. and Mrs. Fagan in developing Marc's IEP, in violation of 20 U.S.C. § 1415(b).
The Hearing Officer determined, however, that reimbursement for tuition paid to the Somerset School would be invalid for any period because the Somerset School is not an authorized school under local law. As noted by the Officer, the Somerset School did not have teachers who were "duly certified or licensed by the jurisdiction in which the facility is located to work with the types of handicapping conditions which the facility purports to serve," as required under 5 D.C.M.R. § 3016.5. See AR at 116. The Fagans have appealed the Hearing Officer's determination.
In reviewing a Hearing Officer's ruling, the court must give "due weight" to the administrative proceedings, Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 206 (1982). While the judicial review provision of IDEA, § 1415(e)(2), "plainly suggests less deference than is conventional," it is still clear that "a party challenging the administrative determination must at least take on the burden of persuading the court that the hearing officer was wrong." Kerkam v. McKenzie, 274 U.S. App. D.C. 139, 862 F.2d 884, 887 (D.C. Cir. 1988).
The Fagans contend that, contrary to the Hearing Officer's determination, reimbursement to an unauthorized school is permissible under the IDEA. This question has been addressed by several Circuits, although it has not yet been considered by the D.C. Circuit. While the Fourth Circuit has upheld reimbursement to unauthorized private schools, see Carter v. Florence County School District Four, 950 F.2d 156 (4th Cir. 1991)
, the Second Circuit has found such awards invalid under the IDEA. See Tucker v. Bay Shore Union Free School District, 873 F.2d 563 (2d Cir. 1989). This Court finds that the reasons given by the Second Circuit weigh against such awards.
First, as the court in Tucker noted, such reimbursements seem to contravene the clear wording of the statute. See 873 F.2d at 565. The IDEA states that a "free appropriate public education" includes only "special education and related services that . . . meet the standards of the State educational agency." 20 U.S.C. § 1401 (a)(18). As mentioned above, the IDEA also provides that handicapped children may be placed in private schools by the local agencies if those schools "meet standards that apply to State and local agencies." Id. at § 1413(a)(4)(B). It seems clear, then, that the Act "expressly incorporates State educational standards" and that "when a handicapped child is educated at a private school . . ., the State has an obligation to ensure that the school meets applicable State educational standards." Schimmel by Schimmel v. Spillane, 819 F.2d 477, 484 (4th Cir. 1987).
We find, secondly, that to permit reimbursement for unilateral placement at unauthorized schools would defeat many of the goals behind the IDEA. Certainly, one of the purposes behind the authorization requirement and IDEA is that the child receive the special education and care that he or she needs. If the parent could be reimbursed for a placement at a private school without such services, the State would no longer be able to guarantee that it was providing an "appropriate" education to a handicapped child.
Additionally, placement at an unauthorized school might discourage cooperation between parents and the local agency in choosing an "appropriate" education. If parents could be reimbursed for placement at a private school of their choice, they would have every incentive to proceed without agency approval and later seek retroactive relief. This action is not of the type this Court would encourage.
Since we find that the Fagans have failed to persuade us that the Hearing Officer's determination was invalid, we uphold the ruling below.
To summarize, we find that the Fagans may not be reimbursed for any portion of their tuition payments to the Somerset School because they had not made a valid appeal, pursuant to Burlington, and because the IDEA is best construed as prohibiting reimbursements for tuition to unauthorized schools. The bottom line and most compelling reason is that we are not authorized to grant reimbursement to parents who unilaterally place their children in private facilities that do not meet state educational standards. We therefore grant defendants' Motion for Summary Judgment and deny plaintiffs' Motion for Summary Judgment. An Order consistent with the above has been entered this day.
JOHN H. PRATT
United States District Court
Date: 25 March 93
ORDER - March 25, 1993, Filed
This Court, having considered plaintiffs' and defendants' Motions for Summary Judgment, the opposition thereto, and the entire record therein, and for reasons stated in an accompanying Memorandum Order entered this day, it is this 25th day of March, 1993, hereby
ORDERED that plaintiffs' Motion for Summary Judgment is denied; and it is
ORDERED that defendants' Motion for Summary Judgment is granted; and it is
FURTHER ORDERED that the above-captioned case is dismissed with prejudice.
JOHN H. PRATT
United States District Court