3rd Circuit Case Note: “FAPE Not So Free: Parents Denied Tuition Reimbursement in Munir v. Pottsville Area School District”
Posted on January 25th, 2014

I.                   Introduction

In a case arising under the Individuals with Disabilities Education Act (IDEA),[1] the Third Circuit in Munir v. Pottsville Area School District[2] considered whether a student’s parents were entitled to reimbursement for the student’s placement in therapeutic residential treatment programs following several suicide attempts.[3] The court also considered whether the school district violated IDEA by failing to provide an adequate individualized education program (IEP) for the student.[4] The two-judge panel held that a student’s placement in a therapeutic residential treatment program, primarily for mental health treatment and with only incidental educational benefits, does not entitle parents to reimbursement under IDEA.[5] In addition, the court held that the district’s proposed IEP satisfied the requirements of IDEA.[6]

II.                Facts and Procedural History

In 2005, O.M., a Pottsville middle school student, first required in-patient hospitalization after making suicidal threats.[7] A psycho-educational evaluation of O.M. conducted by the school revealed no learning disabilities and no eligibility for emotional disturbance services.[8] After three subsequent years of good academic performance and no incidents, O.M. was hospitalized three times in 2008 for suicidal attempts, threats, and gestures.[9] O.M. began the following 2008–09 school year at a boarding school but returned home within the first week after expressing thoughts of harming himself.[10] While reenrolled at Pottsville Area High School, between September and November 2008, O.M. was again hospitalized twice for expressing suicidal thoughts.[11] In response, the district conducted an evaluation of O.M. pursuant to § 504 of the Rehabilitation Act of 1973[12] to determine whether he had a disability.[13] Although the district determined O.M. did not require an IEP, it did create a § 504 plan for O.M.[14]

In January 2009, after another hospitalization, Munir enrolled O.M. at Wediko Children’s Services, a therapeutic residential treatment center in New Hampshire.[15] Wediko provided O.M. with individual and group therapy, as well as a state accredited full-day curriculum, which O.M. began attending two to three weeks after his enrollment.[16] The school day at Wediko consisted of small, pass-fail classes with regular debriefing periods to assess emotional and psychological wellbeing.[17]

Wediko conducted a psycho-educational evaluation of O.M. and diagnosed O.M. with emotional disturbance.[18] Based on the evaluation, Wediko suggested that the school district consider an IEP for O.M.[19] In response, the district developed and offered an IEP to O.M., which included emotional and psychological support services and a cognitive-behavioral curriculum.[20] Munir rejected the proposed IEP, however, as it did not include the same class and services program offered at Wediko.[21] Instead, at the beginning of the 2009–10 school year, Munir enrolled O.M. at the Phelps School, a residential school in Pennsylvania that provided small classes and a supportive environment.[22]

In August 2009, Munir filed a due process complaint with the Office of Dispute Resolution, alleging that the district violated IDEA by failing to conduct a timely evaluation of O.M. and to provide the appropriate specialized education services.[23] Munir sought (1) compensatory education for the period between the fall of 2007 and December 2008 and (2) reimbursement for the cost of O.M.’s placement at Wediko and Phelps. The hearing officer denied both forms of relief on January 23, 2010.[24] Following an appeal of the hearing officer’s decision, the district court adopted the same factual findings and legal analysis and granted summary judgment in favor of the district.[25] This appeal followed, challenging only the denial of tuition reimbursement.

III.             Background on Prior Law

A.     The Individuals with Disabilities Education Act

Under IDEA, a state is eligible to received federal education funding so long as it provides children with disabilities a free appropriate education (FAPE).[26] Providing a FAPE to students requires evaluating all children who may qualify as disabled under the statute.[27] If a student is identified as disabled, a school must determine the student’s educational needs based on the particular disability.[28] IDEA requires schools to develop, propose, and implement an IEP for each child with a disability to meet those needs.[29] An IEP must be “reasonably calculated” to provide specific educational benefits.[30]

If a school is unable to provide a FAPE to a student that meets his or her specialized needs, the school is required to pay for his or her education at another institution.[31] Children may be placed into private institutions with or without prior consent of state or local officials.[32] If a child’s placement changes without prior consent, however, a hearing officer may deny tuition compensation if the officer finds that the school had provided the student with a timely FAPE.[33] In the alternative, if the officer finds that the school did not provide a FAPE and that the alternative institution served as an appropriate placement, tuition reimbursement may be granted.[34]

B.     Applying the Individuals with Disabilities Education Act

Courts have utilized a two-pronged test to determine eligibility for tuition reimbursement under IDEA.[35] To meet this test, parents must show that (1) the school failed to provide the student with a FAPE and (2) the alternative placement was appropriate.[36] An alternative placement is appropriate if it “provid[es] significant learning” and “confer[s] a meaningful benefit.”[37] The alternative placement, however, need not be “perfect” to satisfy IDEA.[38]

The first prong requires a school to have evaluated a student and proposed any necessary IEP to meet the student’s specialized educational needs.[39] To meet the second prong, alternative residential placement must be necessary for educational purposes, beyond any medical, social, or emotional needs of the student.[40] If the placement primarily served psychological needs rather than assisting in the student’s academic learning process, parents are responsible for the cost of such placement.[41] When a child’s psychological and emotional needs are intertwined with his capability to learn, however, special services to meet those needs are a necessary part of his specially designed education.[42] Because all residential placement services may be broadly construed to aid in a child’s learning, courts “assess the link between the supportive service or educational placement and the child’s learning needs.”[43] Incidental educational benefits of a residential placement are insufficient to meet the second prong.[44]

In Forest Grove School District v. T.A.,[45] the Supreme Court noted that a reviewing court has broad discretion to find what relief is appropriate “in light of the Act’s broad purpose of providing children with disabilities a FAPE, including through publicly funded private-school placements when necessary.”[46] In light of this discretion, a court conducting the two-prong reimbursement test must consider all relevant factors to determine whether some or all of the cost of the replacement program is appropriate.[47] Such factors include whether the parents notified the school of their intent to enroll their child in an alternative placement and the school’s opportunities for evaluation of the student.[48]

IV.             Court’s Reasoning

In determining whether Munir was entitled to reimbursement for Wediko’s and Phelps’s tuition, the Third Circuit reviewed the district court’s factual findings for clear error and exercised plenary review over its legal conclusions.[49] The Munir court concurred with the district court in its determination that O.M. was enrolled at Wediko primarily for mental health needs, and thus was not entitled to reimbursement for Wediko’s tuition. The court also found no error in the lower court’s finding that Munir was not entitled to reimbursement for the cost of tuition at Phelps, as the school district had thoughtfully drafted an IEP for O.M. that satisfied its obligations under IDEA.[50]

A.     Reimbursement for Wediko’s Tuition Costs

In evaluating whether O.M.’s placement at Wediko was deserving of reimbursement, the Third Circuit turned to the IDEA analysis set forth in prior case law. The court relied on its earlier opinion in Mary T. v. School District of Philadelphia[51] and determined that the critical question is whether the alternative placement was necessary for educational needs or whether the placement treated the student’s mental health needs as “segregable from his educational needs.”[52] The Munir court cited a similar analysis in Clovis Unified School District v. California Office of Administrative Hearings,[53] in which the Ninth Circuit assessed the link between the private services and the child’s educational needs to conclude that the services were primarily medical.[54] Following this line of reasoning, if O.M.’s placement was an effort to treat his mental health needs, with only incidental educational benefits, the district was not responsible for reimbursement of Wediko’s tuition. A finding that the alternative placement was necessary for educational needs, however, would fulfill the second prong of the test.

One factor the court considered was the availability of an educational program at the alternative placement. In Mary T. and Clovis Unified School District, the alternative placements were directed primarily at the psychological, medical, or emotional needs of the child, as opposed to his or her educational needs.[55] In those cases, there were either no or very limited educational services.[56] The Munir court recognized, however, that Wediko did offer an alternative with an educational component, including a full day of school with a state accredited curriculum.[57]Nevertheless, the court determined this factor to be inconclusive as to whether the placement was in fact educational.[58]

Instead of focusing on the educational services that O.M. received at Wediko, the court determined the initial and primary reason for enrollment—mental health needs—better informed its analysis.[59]The court noted that O.M.’s alternative placement was “prompted by medical emergency” and was in response to his parents’ fear of self-inflicted harm.[60] Furthermore, outside of his suicidal threats and attempts, O.M. did not suffer academically at Pottsville, maintained good attendance, and appeared to socialize with peers.[61] The court weighed these factors more heavily than the fact that O.M. attended specialized classes while at Wediko, and concluded that Munir did not change O.M.’s placement to meet his specialized educational needs.[62] The second prong of IDEA analysis was, therefore, not met.

Reimbursement for Phelps’s Tuition Costs

The Munir court concluded that Munir was not entitled to reimbursement for tuition costs at Phelps because he did not meet the first prong of IDEA analysis.[63] The district’s proposed IEP in 2009 satisfied its obligations under IDEA, as it was “reasonably calculated” to meet O.M.’s specialized educational needs.[64] In drafting the IEP, the district took into account recommendations from Wediko based on its evaluation of O.M.[65]Although the IEP did not provide the same small class sizes and counseling services as offered at Wediko and as requested by Munir, it was not required to be “perfect” or “maximize the potential” of the student.[66]

V. Analysis

In evaluating Munir’s claim of compensatory relief, the Munir court applied the two-prong analysis under IDEA improperly in part, and properly in part. Regarding the issue of reimbursement for Wediko’s tuition, the court insufficiently addressed the first prong: whether the school district had provided O.M. with a FAPE prior to attending the new school. Furthermore, despite the integral educational benefit received from the Wediko program, the court erroneously found the initial reason for O.M.’s alternative placement—mental health—dispositive of the inappropriateness of the placement. The court, however, correctly decided that Munir was not entitled to reimbursement of Phelps’s tuition, as the district had proposed an adequate IEP for O.M. prior to his enrollment. Even if Phelps served as an appropriate alternative placement, the district did not fail the first prong of providing O.M. with a FAPE.

A. The “Appropriateness” of the Wediko Residential Program

In addressing the claim for relief for the Wediko program, the Munir court failed to discuss the question of whether the school district had provided O.M. with a FAPE and skipped right to the second prong to conclude that the alternative placement was not “appropriate.” The hearing officer, who found that the district did not deprive O.M. of a FAPE, provides guidance to the former issue. The officer noted that between 2005 and the spring of 2008, O.M.’s mental health did not appear to affect his ability to learn.[67] However, after the multiple incidents in 2008, the district may have had a greater obligation to evaluate O.M. and provide him with specialized services.[68] The officer concluded, however, that even if the district had violated IDEA, that “violation had no substantive effect” as O.M. was transferred to Wediko before the district had an opportunity to complete the process of instituting an IEP.[69]

The missing fact in the hearing officer’s analysis seems to be that the Munirs had requested an IEP for their son in September 2008, and in response, the district conducted an evaluation. The district implemented a § 504 plan but not an IEP. To determine whether the § 504 plan was sufficient to provide O.M. with a FAPE, or whether the failure to provide an IEP prevented a FAPE, more information would be needed than was provided in the court’s opinion.

Putting aside the first prong, O.M.’s placement in the Wediko program can likely meet the second prong of the reimbursement analysis under IDEA, as it was an “appropriate” placement. The private hospitalization services in Mary T. and Clovis Unified School District were long-term psychiatric facilities with little to no educational services. Such in-patient care was clearly designed to treat medical conditions and not meet academic needs.[70] The Wediko program, on the other hand, was distinct in its comprehensive offerings of both psychological and educational services.[71] After the first two to three weeks, O.M. spent full days in Wediko’s state accredited school program, which integrated psychological debriefing periods throughout the day.[72] Wediko’s educational benefit to O.M., therefore, does not appear to be incidental but an integrated part of the program as a whole. The intertwining of educational and psychological services demonstrates that the Wediko program was an appropriate placement. Indeed, it seemed to provide O.M. with “significant learning” and conferred “meaningful benefit.”[73]

The Munir court pointed to O.M.’s maintenance of his grades and attendance record at Pottsville as evidence that his academic learning was not suffering.[74] Nevertheless, O.M.’s self-inflicted harm and suicidal thoughts appeared to significantly interrupt his learning: he had to continually receive in-patient hospital care, and his parents were often required to pick him up from school after he expressed feelings of being upset.[75] There is also indication that O.M. was unable to handle the courses for which he was academically suited.[76] For example, in 2008, O.M. had signed up for honors math classes but began struggling and dropped to the lower-level courses.[77]

In addition, after finishing the 2008–9 school year at Wediko, Munir decided O.M.’s risk level had decreased enough to transfer him to a less intensive environment.[78] O.M. was thus sent to Phelps. This change in placement is evidence of the success of the Wediko program. O.M.’s needs for special services and consistency in programming demonstrate that the link between O.M.’s educational and psychological needs was sufficiently substantial so as to hold the school district financially responsible for the alternative placement.

The Munir court stressed that O.M.’s placement at Wediko was prompted by a medical emergency.[79] However, even if a change to an alternative placement is rooted in psychological or emotional problems, a school may still be obligated to reimburse the costs of such placement if it helps to alleviate the problems that inhibit the ability to learn.[80] Granting tuition reimbursement for the Wediko program is further supported by the Act’s “broad purpose of providing children with disabilities a FAPE, including through publicly funded private-school placements,” as recognized by the Supreme Court.[81]

B. The School District’s Offering of a FAPE

The Munir court properly denied relief for the cost of tuition at Phelps, as the district had offered O.M. a sufficient IEP. It is unrealistic to expect a public school to offer identical services to those offered at a specialized institute to disabled students. Although such services may be superior in aiding a student’s learning capabilities, they may not be necessary to ensure the availability of appropriate and meaningful educational benefits.

In Munir, the school district on two occasions in 2009 proposed an IEP for O.M., taking into account the specific recommendations of Wediko.[82] There is no support in either the statute or in case law that the IEP be perfect; rather, it must measure the student’s current educational capabilities and present annual goals, as well as specifically describe special education and related services that will be provided to meet such goals.[83] Although the court’s opinion does not provide detail of the district’s proposed IEP, Munir demanded compensatory relief due to the district’s failure to provide small class sizes and the type of counseling services provided at Wediko. This suggests that beyond those two specific services, the IEP was otherwise satisfactory. As the IEP did provide for emotional, psychological, and social work services, it is reasonable to conclude that the district met its obligation to provide a FAPE to O.M.

VI. Implications

The general policy objective of IDEA—to provide free appropriate education for every disabled child—is frustrated by decisions such as Munir. The Munir court set a stricter precedent for parents seeking compensation for special educational services for their disabled children. The court’s opinion treats the district’s obligations under IDEA leniently by failing to address the lack of a proposed IEP between 2005 and 2009. In addressing the appropriateness of the alternative placement at Wediko, the court set aside the most significant factor—the educational benefits afforded O.M.—and instead concentrated on the medical nature of the root problem.

Schools have an important interest in protection from unreasonable reimbursement demands by parents who simply refuse to cooperate with the school. The two-prong reimbursement test, however, provides sufficient procedural safeguards against this type of abuse. Furthermore, the Supreme Court recognized the huge financial risk parents take in unilaterally moving their children to an alternative placement without conferring with the public school.[84] This risk, the Court noted, should quell concerns of parents abusing public resources and of the potential financial burden on public schools.[85]

Congress drafted IDEA with the intention of encouraging collaboration between schools and parents in developing IEPs that provide children with FAPEs.[86] While it is always financially safer for parents to confer and collaborate with the school district before transferring a child, it may sometimes be the case, as in the case of O.M., that grave risks are implicated with delay. Nevertheless, following the Third Circuit’s decision, parents must take caution before unilaterally moving their children into alternative placements.

Anna Kessler

Temple University Beasley School of Law, JD Candidate 2015

[1] 20 U.S.C. §§ 1400–1482 (2012).

[2] 723 F.3d 423 (3d Cir. 2013).

[3] Munir, 723 F.3d at 426.

[4] Id. at 431.

[5] Id. at 434.

[6] Id.

[7] Id. at 426–27.

[8] Id. at 427.

[9] Id.

[10] Id.

[11] Id.

[12] 29 U.S.C. § 701–797 (2012).

[13] Id.

[14] Id. at 428.

[15] Id.

[16] Id.

[17] Id.

[18] Id. Emotional disturbance is a qualifying disability under IDEA. 20 U.S.C. § 1401(3)(a)(i)(2012).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 429.

[25] Id.

[26] 20 U.S.C. § 1412(a)(1)(2012).

[27] Munir, 723 F.3d at 426.

[28] Id. at 426.

[29] 20 U.S.C. § 1412(a)(4); id. § 1414(d).

[30] Munir, 723 F.3d at 426.

[31] Id. at 426.

[32] 20 U.S.C. § 1412(a)(10)(B)–(C).

[33] Id. § 1412(a)(10)(C)(ii).

[34] Munir, 723 F.3d at 426; see Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15 (1993) (“[Parents] are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act.”).

[35] See, e.g., Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (finding reimbursement authorized under IDEA “when a school district fails to provide a FAPE and the private-school placement is appropriate”).

[36] See Sch. Comm. v. Dep’t. of Educ., 471 U.S. 359, 370 (1985) (noting that a child’s placement in private school at public expense is appropriate relief where “a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate”).

[37] Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007) (internal quotations omitted).

[38] Mary T. v. Sch. Dist., 575 F.3d 235, 242 (3d Cir. 2009) (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 249 n.8 (3d Cir. 1999)).

[39] See id. at 240 (“School districts provide a FAPE by designing and administering a program of individualized instruction that is set forth in an Individualized Education Plan”).

[40] Id. at 243.

[41] Id. at 243–44.

[42] See Kruelle v. New Castle Cnty. Sch. Dist., 642 F.2d 687, 693–94 (3d Cir. 1981) (describing the issue as “whether placement was required for emotional problems and was therefore the responsibility of the parents or social services agencies or whether full-time placement was a necessary ingredient for learning”).

[43] Kruelle, 642 F.2d at 694.

[44] Mary T., 575 F.3d at 245–46.

[45] 557 U.S. 230 (2009).

[46] Forest Grove Sch. Dist., 557 U.S. at 238 (citing Sch. Comm. v. Dep’t of Educ., 471 U.S. 359, 369 (1996)).

[47] Id. at 247.

[48] Id.

[49] Munir v. Pottsville Area Sch. Dist., 723 F.3d 423, 430 (3d Cir. 2013).

[50] Id. at 434.

[51] 575 F.3d 235 (3d Cir. 2009). In Mary T., the Third Circuit framed the issue as “whether full-time placement may be considered necessary for education purposes, or whether the residential placement is a response to medical, social or emotional problems that are segregable from the learning process.” 575 F.3d at 243–44. The court noted that the school was obligated to bear the cost of tuition only in the former, and not the latter, situation. Id. at 244.

[52] Munir, 723 F.3d at 433 (citing Mary T., 575 F.3d at 243–44).

[53] 903 F.2d 635 (9th Cir. 1990).

[54] Clovis Unified Sch. Dist., 903 F.2d at 645.

[55] Munir, 723 F.3d at 432.

[56] Id.

[57] Id. at 433.

[58] Id.

[59] Id.

[60] Id.

[61] Id. at 433–34.

[62] Id. at 434.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id. at 429.

[68] Id.

[69] Id.

[70] See Mary T. v. Sch. Dist., 575 F.3d 235, 239 (3d Cir. 2009) (describing the treatment center as a licensed and accredited mental health and rehabilitative long-term psychiatric residential facility, with no educational accreditation, school services, or school affiliation); Clovis Unified Sch. Dist. v. California Office of Admin. Hearings, 903 F.2d 635, 645 (noting that the child required six hours of intensive psychotherapy each day, and received one to two hours per day of classroom instruction).

[71] See supra notes 15–17 and accompanying text for a description of the Wediko program.

[72] Munir, 723 F.3d at 428.

[73] Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007) (internal quotations omitted).

[74] Id. at 433–34.

[75] See supra notes 7–15 and accompanying text for a timeline of in-patient hospital care.

[76] Id. at 427.

[77] Id.

[78] Id. at 428.

[79] Id. at 433.

[80] See Kruelle v. New Castle Cnty. Sch. Dist., 642 F.2d 687, 694 (3d Cir. 1981) (noting that the student’s self-destructive behaviors limited his ability to learn, and thus an environment that reduced such behaviors served as an appropriate placement).

[81] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238 (2009).

[82] Munir, 723 F.3d at 428.

[83] 20 U.S.C. § 1414(d)(1)(A)(i)(I)–(IV) (2012).

[84] Forest Grove, 557 U.S. at 247.

[85] Id.

[86] See Courtney Rachel Baron, Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA, 103 Nw. U. L. Rev. Colloquy 522, 523 (2009) (noting that the IDEA is “structured” to encourage parent-school district collaboration in providing children with special education services).