M.M. v. School Board of Miami-Dade County, Florida, No. 04-14982 (11th Cir. Jan. 25, 2006)
The U.S. Court of Appeals for the Eleventh Circuit has ruled that the parents of a special education student who never attended public school are entitled to reimbursement for private school tuition and related services under the Individual with Disabilities Education Act (IDEA) if the school district's proposed individualized education program (IEP) fails to provide the student with a free appropriate public education (FAPE). However, the court denied the parents' claim for reimbursement, finding that the proposed IEP at issue provided a FAPE. C.M. suffers from profound hearing loss and received a cochlear implant. After the implant surgery, C.M.'s parents followed the surgeon's recommendation to use the auditory-verbal therapy (AVT) method for teaching her to communicate. C.M. attended a private preschool that did not offer AVT. Until she turned three, however, the Miami-Dade County Early Intervention Program (EIP) provided her AVT. At that point, EIP turned its file on C.M. over to the Miami-Dade County School District (MDCSD) for a determination of whether C.M. was eligible for special education services from the district. After concluding she was, MDCSD developed an IEP that called for the verbotonal (VT) method of teaching oral communication. The parents rejected that method and requested a due process hearing regarding the adequacy of the IEP, meanwhile continuing AVT therapy at their expense.
The administrative law judge (ALJ) ruled that he lacked jurisdiction to order reimbursement for the AVT therapy, transportation to and from therapy, mapping for the cochlear implant, and batteries for the implant, because under IDEA only parents who unilaterally move their child from public school to private school are eligible for reimbursement. Even if the parents were eligible, the ALJ ruled in the alternative that they would not be entitled to such reimbursement based on MDCSD's failure to provide a FAPE, because although AVT therapy provided a significant benefit to C.M., it is not the only "accepted and proven therapeutic methodology." VT is another, and it was MDCSD's "prerogative, not the [p]arents', to choose which of these accepted and proven methodologies will be provided at public expense."
The parents sued in federal district court, claiming that MDCSD violated IDEA by failing to provide C.M. with a FAPE and violated the Americans with Disabilities Act (ADA) by failing to accommodate C.M. The court, in apparent agreement with the ALJ, dismissed the IDEA claim on the ground that it lacked jurisdiction to order reimbursement. The parents appealed to the Eleventh Circuit. The appeals court first addressed whether IDEA precludes parents of a student who has never attended public school from obtaining reimbursement. The court concluded that the ALJ's reasoning was flawed in two ways. First, IDEA's reimbursement provision did cover C.M.'s situation because she had "actually 'received special education and related services under the authority of a public agency' as provided under [20 U.S.C.] 1412(a)(10)(C)(ii)" until the age of three. As a result, if MDCSD failed to provide C.M. with a FAPE, "she satisfies the precondition… for reimbursement." Second, the ALJ's reliance on the fact that C.M. never attended public school was legally insufficient to deny reimbursement; a line of federal court decisions holds that "even when a child has never enrolled in a public school, reimbursement is proper if the [school district] failed to offer a sufficient IEP and, in turn, a FAPE."
After confirming that the transportation, mapping, and batteries are "related services" under IDEA, the Eleventh Circuit turned to the issue of whether MDCSD's refusal to provide the AVT method was a failure to provide a FAPE. Like the ALJ, the court found that even though the AVT method might even be the best program to maximize C.M.'s academic potential, IDEA requires only that the IEP "be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." The VT method meets this standard and, thus, the parents failed to state a claim for failure to provide a FAPE. The court remanded the case to the district court with instructions to modify its dismissal to one for failure to state a cause of action.
M.M. v. School Board of Miami-Dade County, Florida, No. 04-14982 (11th Cir. Jan. 25, 2006)
[Link to full opinion]