Mother sues district, alleges it failed to provide special education services

A mother filed a lawsuit against her child's school district under the Individuals with Disabilities Education Act (IDEA), alleging that the school district failed to fulfill its obligations under Child Find and failed to provide the child with a free and appropriate public education (FAPE). 

At a due process hearing, the hearing officer found against the mother on both claims. The mother appealed to district court, which ruled that the school district had not provided FAPE but did not award tuition reimbursement to the mother. The mother appealed to the court of appeals. 

The court of appeals examined the facts that formed the basis of the claim, which began while the child was in kindergarten and failed a routine dyslexia screener. The mother was not informed of the failed screener at the time. The child began to struggle academically in first grade. The district provided Tier 2 intervention in reading and continued that intervention into second grade. The mother also hired a tutor for her child. 

But the student continued to struggle academically. Four weeks into the child's second-grade year, the district added Tier 2 support in math, and eight weeks into the year, it moved the child to Tier 3 support in reading. 

The child's second grade teacher informed a speech therapist at the school that the child possibly needed speech assistance. The child was evaluated for language/speech services, and the evaluation indicated that the child was eligible for special education. 

In November, an IEP was developed to provide speech services. This testing and IEP did not include dyslexia or ADHD testing or services, and an academic interventionist testified that she did not see characteristics of dyslexia in the child.

The tutor hired by the mother observed signs of dyslexia in the child and the mother informed the school of the tutor's observations.

The district did not test the child for dyslexia or provide services related to dyslexia. The mother arranged for an independent assessment of the child, and it resulted in a diagnosis of mild dyslexia and ADHD. The mother informed the district of the dyslexia diagnosis and asked that the child be considered for therapy or accommodations. 

In response, a counselor submitted a Child Find request to the district. Later that month, the district held a meeting to discuss whether the child needed further testing or services. Ultimately, the district decided not to test the child for dyslexia, claiming that it was not necessary because the tests would have been very similar to those conducted during the independent assessment.

The district concluded that the services the child was already receiving were appropriate and that the child did not qualify for general education dyslexia services. Although the district implemented a Section 504 plan for the child, that plan did not include dyslexia services or accommodations. The district did not recommend changes to the IEP or Tier 3 interventions to address dyslexia or ADHD.

Over the course of second grade, the child's standardized testing scores improved by less than one grade level. The child continued to struggle academically and was not promoted to third grade. The district planned to continue the same Tier 3 services the following school year. At that point, the mother enrolled the child in a private school. 

The district court found that the district violated its Child Find obligations and failed to provide a FAPE. It awarded attorneys' fees and related expenses to the mother and ordered that the district reimburse her for the cost of the independent dyslexia assessment. It also ordered that if the child re-enrolled in the district, the district must evaluate the child for dyslexia and ADHD, develop a new IEP to address any dyslexia or ADHD issues uncovered, and review the IEP if the child was not making sufficient progress. 

However, the court found that the mother failed to establish that the private school was an appropriate placement for the child, so the court did not award tuition reimbursement.

As to whether the district had provided FAPE, the court of appeals noted that a FAPE requires an IEP to be tailored to the unique needs of a particular child. Each IEP must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide. 

An IEP must be designed to achieve meaningful education, which requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. Further, it must be appropriately ambitious. For a child placed in a general education classroom, this means that the IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

To determine whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA, the court considered the following:

• whether the program is individualized on the basis of the student's assessment and performance;
• whether the program is administered in the least restrictive environment;
• whether the services are provided in a coordinated and collaborative manner by the key stakeholders; and
• whether positive academic and non-academic benefits are demonstrated.

In applying the above factors, the court of appeals found that the school district had not provided a FAPE. The program was not individualized because the kindergarten dyslexia screener, the independent assessment and the private tutor's observations of signs of dyslexia were not considered in the IEP. 

Although key stakeholders were sometimes included, the mother's request for a re-evaluation of the child after the independent dyslexia diagnosis was effectively denied. 

Further, the district also did not include the mother in decision-making, nor inform her about the child's failure of the dyslexia screening in the kindergarten year. 

Finally, in assessing the facts as to factor four, which is the most critical factor, positive academic and non-academic benefits were not demonstrated because the student was failing second grade and, when the district realized the child would fail second grade, it did not adjust the treatment plan.

Having found that the district failed to provide FAPE, the court of appeals then turned to the question of whether the mother was entitled to tuition reimbursement for the private school. A parent who enrolls a child in private school without the consent of the school officials is entitled to reimbursement only if a federal court concludes both that the public placement violated the IDEA and that the private school placement was proper.

In this case, although the mother demonstrated that the district failed to provide FAPE, she did not prove that the private school setting was the correct placement for the student.

Based on the above, the court of appeals upheld the ruling of the district court.