Disappeared News

by Larry Geller

In a ruling filed on Friday in United States District Court, Hawaii Judge Alan C. Kay declared that enforcement of a section of a Hawaii state law used by the Department of Education to withhold tuition payments to a private school for special education services conflicted with the federal Individuals with Disabilities Education Act (IDEA), and that the federal law took precedence.

Reading the order in DOE v. Loveland Academy may be confusing to those not familiar with disability law, specifically the IDEA, but the nub of it starts on p. 53, which is snipped below.

In order to understand the snip it’s necessary to explain what “stay put” and FAPE are.

In plain language, when there is a dispute between parents and the DOE that goes before a hearings officer or a court, while the matter is pending resolution, the DOE may not unilaterally change the student’s placement. So if, as in this case, the student was placed in a private school, the student must remain there, with the same program, until the matter is resolved. This is clearly for the protection of the student.

In this instance, “stay put” was in effect for this student. By withholding payment to the private school, the DOE was attempting to change the student’s placement, since clearly, the student could not stay there for free.

FAPE refers to the guarantee, under the IDEA, of a Free Appropriate Public Education for students with disabilities.

The snip, edited:

The Court concludes that Act 129’s Section (i) is preempted by the IDEA, as applied to this case. Section (i) required DOE to withhold tuition that it was obligated to provide under the IDEA; pursuant to the Supremacy Clause, this conflict must be resolved in favor of DOE’s federal obligation.

The parties have not presented, nor is the Court aware of, any authority that would allow states to withhold reimbursement to students’ private stay-put placements, in contravention of their federal funding obligation.

The overarching purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education,” and to ensure that “children with disabilities and parents of such children are protected.” To that end, the IDEA places the responsibility for providing FAPE directly on the school district, even when students are placed in private schools: “If the State or public agency has placed children with disabilities in private schools for purposes of providing FAPE to those children, the State and the public agency must ensure that these children receive the required special education and related services at public expense, at no cost to the parents, and in accordance with each child’s IEP.”

Given the IDEA’s purpose and funding requirements related to the provision of FAPE during stay-put, DOE’s enforcement of Section (i) in this case stood “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

This case should be extremely important to parents faced with similar challenges to their children’s attendance at private schools, whether the placement was made by the DOE or by order of a hearings officer or court. Loveland Academy’s perseverance in this long case made this result possible.

It also should thwart DOE attempts to yank students out of private placements while hearings are in progress, and help the survivability of those capable private schools that have come into existence to fill deficiencies in the DOE’s special education services.

Permalink posted by Larry @ 9/06/2015 06:24:00 PM