IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARDSON INDEPENDENT §

SCHOOL DISTRICT, §

§

Plaintiff, §

§

v. § No. 3:05-CV-535-M

§ 

MICHAEL Z. and CAROLYN Z., as next §

friends of LEAH Z., a minor child, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants’ Motion for Judgment on the Record, Plaintiff’s Motion

for Final Judgment, Plaintiff’s Motion to Strike the Appendix to Defendants’ Motion, and

Plaintiff’s Motion to Strike Defendants’ Brief in Support of Defendants’ Response. Although

Defendants’ Response to Plaintiff’s Motion for Final Judgment exceeds the page limit prescribed

by the Local Civil Rules, the issues in this case are legally and factually complex, and Plaintiff

and Defendants were both granted leave to file additional briefing. The Motion to Strike

Defendants’ Brief in Support of Defendants’ Response is therefore DENIED. For the reasons

stated below, Plaintiff’s Motion to Strike the Appendix to Defendants’ Motion is also DENIED,

Plaintiff’s Motion for Final Judgment is DENIED, and Defendants’ Motion for Judgment on the

Record is GRANTED IN PART. Additionally, the parties are advised that additional briefing is

required and is described in the body of this Memorandum Opinion and Order.
 The IDEA refers to such a committee as an IEP Team. 20 U.S.C. § 1414(d)(1)(B). 1

Page 2 of 34

THE IDEA

The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400–1482 (“IDEA”),

attempts “to ensure that all children with disabilities have available to them a free appropriate

public education that emphasizes special education and related services designed to meet their

unique needs and prepare them for further education, employment, and independent living.” 20

U.S.C. § 1400(d)(1)(A). States receiving federal assistance under the IDEA are obligated to (1)

provide a “free appropriate public education” to each disabled child within its boundaries, and (2)

ensure that such education is in the “least restrictive environment” possible. Cypress-Fairbanks

Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997); 20 U.S.C. § 1412(1), (5). The

free appropriate public education provided must be developed to each disabled child’s needs

through an “individual educational program” (“IEP”), “a written statement prepared at a meeting

attended by a qualified representative of the school district, a teacher, the child’s parents or

guardians, and, when appropriate, the child.” Michael F., 118 F.3d at 247; see 20 U.S.C.

§ 1414(d). In Texas, the committee responsible for preparing an IEP is known as an Admissions,

Review, and Dismissal Committee (“ARD Committee”). 

1

The IDEA also establishes robust procedural requirements that bind state and local

educational agencies receiving federal assistance. 20 U.S.C. § 1415(a). In relevant part, the

IDEA permits a parent or guardian of a disabled child to file a complaint “with respect to any

matter relating to the identification, evaluation, or educational placement of the child, or the

provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6). The

complaint initiates an impartial due process hearing, conducted in accordance with state law. 20
Page 3 of 34

U.S.C. § 1415(f)(1)(A). In Texas, a Special Education Hearing Officer (“Hearing Officer”)

presides over such a hearing. If the hearing is conducted by a local educational agency, any party

aggrieved by the agency’s decision may appeal to a state educational agency. 20 U.S.C.

§ 1415(g). Thereafter, any aggrieved party “shall have the right to bring a civil action . . . , which

action may be brought in any State court of competent jurisdiction or in a district court of the

United States, without regard to the amount in controversy.” 20 U.S.C. § 1415(i)(2)(A).

BACKGROUND

This case concerns the education of Leah Z., a minor child at all relevant times, and the

steps taken by the Richardson Independent School District (“District”) to provide Leah a free

appropriate public education as required by the Individuals with Disabilities Education Act. The

Court shall refer to Leah by her first name and to her parents—Michael Z. and Carolyn Z.—as

Defendants. The record in this case, which the Court has reviewed in determining whether to

uphold or reverse the administrative decision below, is substantial. Suffice it to say that the

Court here aims only to present the contours of the relevant facts. 

Since a very young age, Leah has had behavioral problems. She was diagnosed with

attention deficit disorder and oppositional defiant disorder at age four, and with bipolar disorder

at age six. Prior to attending school in the District, Leah attended nearly a dozen private schools,

ranging from daycare centers, to day schools, to special needs institutions. She experienced

emotional and behavioral difficultly in most of these schools. She first entered the District

during the fall of 1999, for the fifth grade. By the time Leah reached the ninth grade—the year

most relevant to this action—she had been diagnosed with bipolar disorder, separation anxiety

disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and pervasive
 The SDAA is a special education alternative to the standardized test administered to “mainstream” students. As is 2

apparent from a review of Leah’s SDAA results, the test assesses students relative to mainstream grade levels, with

three gradations of proficiency: minimal, moderate, and sufficient.

Page 4 of 34

developmental disorder. Based on these diagnoses, Leah qualified for special education and

related services from the District.

Leah exhibited some academic progress, albeit measured, in her fifth-, sixth-, seventh-,

and eighth-grade years. At the end of sixth grade, in May 2001, the District administered to

Leah, for the first time, the Texas State Developed Alternative Assessment (“SDAA”). The test 2

revealed that Leah could read at the level of a minimally proficient fourth-grade student, and

could perform math at the level of a moderately proficient fourth-grade student. At the end of

eighth grade, in May 2003, Leah’s reading and math levels were assessed at those of a

sufficiently proficient fourth-grade student. Defendants note that it was reported at an ARD

Committee meeting in October 2002 that Leah was writing at a second- to third-grade level,

reading at a third-grade level, and performing math at a sixth-grade level.

In seventh grade, Leah entered Westwood Junior High School (“Westwood”), a school

within the District. She was placed in a Behavior Adjustment (“BA”) course, and by the middle

of that year, Leah was alone in the class with her teacher, Claire Burton. She remained in the

class until the fall of her ninth-grade year, having initially developed a good relationship with

Burton. 

A. Leah’s Ninth-Grade Year

On September 25, 2003, at the beginning of Leah’s ninth-grade year, an ARD Committee

met to establish her IEP, which included the goals of increasing her reading skills in
 In quoting this same language to support the argument that Leah had regressed from the October 2002 levels 3

mentioned in the ARD Committee report, which noted that Leah was reading at the third-grade level, Defendants

inexplicably omit the word “high.”

Page 5 of 34

comprehension “to a high [third-grade] level,” and of improving her math skills to a fifth-grade 3

level. The IEP also noted that Leah had “regressed significantly over the summer,” and had not

“recouped.” It additionally provided strategies to promote progress for Leah, including the use of

“frequent breaks and reward times,” but placed certain limitations on time outside the classroom. 

Most relevant to this proceeding, the IEP contemplated that school staff “supervise Leah at all

times and . . . require that she stay in the classroom unless she has permission to leave it. This

may mean that staff [will be required to] keep the classroom door closed and use physical

proximity to keep Leah from departing without permission.” 

Leah began experiencing academic and behavioral difficulty at Westwood at the

beginning of ninth grade. In September 2003, Leah stated that she had lost trust in Burton during

an incident in which a boy in her class was arrested and handcuffed in the classroom. Although

Leah did not witness the arrest, she heard laughter from behind a partition in the room and

perceived that Burton and several adults were laughing at the handcuffed student. After the

incident, she began to leave Burton’s class without permission, on a near-daily basis. Burton’s

attempted solution to the problem was to reward Leah’s good behavior with time away from

class. Leah also arrived to school late and left early. Early departure was permitted by her

Behavior Intervention Plan—an addendum to the IEP—but late arrival was not. The record is

unclear as to the cause of Leah’s late arrivals. 

In the fall of 2003, Kathy Kelchner, an independent educational consultant and former

education program specialist for the District, began to work privately with Leah on self-advocacy
 Leah was apparently handcuffed at the request of her mother. 4

Page 6 of 34

and social skills. Kelchner also participated with Defendants at ARD Committee meetings, and

observed Leah at school on November 4, 2003, for approximately three hours. Before the

Hearing Officer, she testified regarding her concerns with the manner in which Burton taught

Leah, including her concern with Burton’s statement to Leah that Burton was not to work on

multiplication with Leah at the request of her parents, which conflicted with Kelchner’s

recollection that Leah’s parents had specifically requested at an ARD Committee meeting that

Burton work with Leah on multiplication. 

On November 5, 2003, Leah was handcuffed and issued a citation for leaving the grounds

of Westwood during school hours, and on November 6, 2003, Leah’s parents kept Leah home 4

from school and wrote to Leah’s psychiatrist, Dr. Richard Jaeckle, regarding the recent

difficulties that Leah was having at school. Dr. Jaeckle recommended that Leah be placed in a

“homebound” setting—with education provided by the District at Leah’s home—for six to eight

weeks, to determine a more appropriate educational placement. Leah’s parents discussed the

recommendation with Westwood’s principal and psychologist on November 11, 2003, and it was

determined that Leah would receive homebound education until the beginning of the spring

semester in January 2004, that Leah would attend Jay Henderson’s Behavior Adjustment class

once she returned to Westwood, and that it would be best for Leah not to have contact with

Burton or Burton’s two paraprofessional assistants. An ARD Committee convened on December

4, 2003 to implement the change in Leah’s placement, and Leah received four days of

homebound instruction prior to the winter break.
 It is clear that Leah had some contact with Burton despite the apparent understanding at the meeting of November 5

11, 2003, that Burton would not have further contact with Leah. It does not appear that this restriction was ever

incorporated into Leah’s IEP or related documents.

Page 7 of 34

In January 2004, Leah returned to Westwood and was placed in Henderson’s Behavior

Adjustment class, as well as in several mainstream elective courses. Although the transition to

Henderson’s class initially appeared successful, Leah’s behavior quickly deteriorated. By midJanuary, she was frequently arriving to class late, leaving class early, and wandering the school

halls. On one occasion, she evaded a school officer who was attempting to have her return to

class. Her misbehavior included an outburst in Henderson’s class: Leah overturned furniture and

insulted Henderson and Burton, using profane language. During another outburst, Leah 5

disrupted testing taking place at Westwood, and was sent home. There is a dispute between the

parties about how Henderson and other Westwood faculty responded to Leah’s frequent absences

from class. Kelchner testified that Henderson said “we quit following her because she’s trying to

get our attention. So we just let her roam[,] and we wait for her to come back to class.”

Henderson denied saying that “we would let her roam until she returns.” It seems apparent that

sometimes the District’s employees supervised Leah during her absences, and sometimes they

did not.

Leah’s tardiness and absence from class continued into February 2004, and on February

22, 2004, Leah’s parents maintain it was discovered that she was engaging in sexual activities in

the boys’ bathrooms at Westwood. At the due process hearing before the Hearing Officer, the

District stipulated that Leah performed at least one sex act in the boys’ bathroom at Westwood,

after school. Defendants contend, and the Hearing Officer found, and the Court concurs, that

such activity occurred on multiple occasions. On February 23, 2004, Dr. Jaeckle recommended
 The District cites a portion of the record for the proposition that Leah did not demonstrate any behavior of a sexual 6

nature at RHS. The portion cited does not support that proposition and is, in any event, contradicted by Mitchell’s

testimony that Leah did in fact exhibit sexually aggressive behavior during, for example, a conversation with a fellow

student regarding that student’s boyfriend. 

Page 8 of 34

that Leah remain home from school until an alternative placement could be found, and her

parents requested the same from the District. The District acceded to Defendants’ request,

placing Leah at Richardson High School (“RHS”), beginning March 15, 2004. The special

education teacher assigned to the Behavior Adjustment course at RHS was on maternity leave, so

the District hired a long-term substitute, Jeannie Mitchell, to instruct Leah for several weeks. 

The parties diverge in their assessment of Mitchell’s qualifications, in part because she was not

certified to teach in Texas. Mitchell testified that the District hired her to work directly with

Leah, but that she received virtually no material from the District, such as Leah’s IEP, to aid her. 

This is consistent with Mitchell’s claim that an RHS teacher told her that the other teachers were

told not to assist Mitchell with Leah’s instruction. In fact, Mitchell learned of Leah’s special

needs—such as constant supervision—primarily from Leah’s mother: “Never let her out of your

sight.” Mitchell eventually met with Henderson, who provided Mitchell with the second-grade

instructional materials that Mitchell used to teach Leah. Leah’s experience at RHS, which lasted

two weeks, was consistent with her time at Westwood. She was absent at least one day, she left

class without permission four times, she displayed sexually aggressive behavior, and it was 6

difficult to get her to work on her assignment sheets.

B. Residential Placement of Leah 

After approximately two weeks at RHS, Leah became physically aggressive at home,

scratching her father and causing him to bleed. A few days earlier, Dr. Jaeckle had

recommended that Leah’s parents take Leah to the Seay Center, a psychiatric facility. After the
 The Seay Center apparently focuses primarily on chemical dependency and depression, making it an inappropriate 7

placement for Leah.

Page 9 of 34

scratching incident, Leah’s parents followed Dr. Jaeckle’s advice. Leah’s parents placed Leah at

the Texas NeuroRehab Center (“TNRC”) after two days at the Seay Center. Thus, Leah’s

7

parents removed Leah from the District as of April 5, 2004. No notice was given to the District

prior to the removal. The parties vigorously dispute the purpose of Leah’s placement at the

TNRC. Her parents claim, and the Hearing Officer found, that Leah’s behavioral, educational,

and medical problems were so intertwined that placement at a residential facility, like the TNRC,

was necessary for her to have any opportunity to progress educationally. The District argues that

Leah’s parents placed Leah at the TNRC for non-educational reasons. The Court will address the

dispute below.

When Leah arrived at the TNRC, Dr. Nilima Mehta performed an admission psychiatric

evaluation, and noted in her report that Leah had been brought to the TNRC for “diagnostic

evaluation and behavioral stabilization.” Dr. Mehta’s goal was to adjust Leah’s medications “to

control the behaviors and improve overall emotional functions and also oral functioning in the

school setting, home setting, and outside in the community.” The TNRC also performed a

number of other evaluations on Leah, including an educational evaluation, a vocational

evaluation, a minimal motor impairment evaluation, a therapeutic recreation assessment, an

occupational therapy evaluation, and a speech-language evaluation. The educational evaluation,

based upon a test known as the “Green Brigance,” indicated that Leah was reading at the secondgrade level and comprehending short reading passages at an upper-first-grade level. Leah did not

complete the testing in mathematics.
 The report references multiple previous assessments, the earliest of which was performed in January 1994. 

8

Presumably, the results of Leah’s past assessments are maintained in a medical file accessible by attending

physicians.

 One instance of self-abuse involved Leah carving the word “mad” into her skin. 9

Page 10 of 34

While at the TNRC, Leah attended the University Charter School (“UCS”). Dr. Walt

Mercer performed her intake neuropsychological assessment on April 5 and April 16, 2004. He

reported evidence of “significant neurocognitive decline” compared to previous assessments,

8

and recommended that Leah “continue to receive special education services through age 21 in

order to develop educational and vocational skills to maximize her ability to live independently.” 

The UCS developed an IEP for Leah, and provided her with physical therapy, occupational

therapy, and counseling. 

Leah’s stay at the TNRC was marked by extreme physical and sexual aggression: she

groped staff members and other patients, attempted to remove the clothing of several patients,

refused to follow directions, refused to attend class, and even engaged in self-mutilation, all of

which resulted in her frequently being physically restrained. A progress report on Leah’s stay at

the TNRC between May 11, 2004 and June 14, 2004 recorded the following: 6 instances of

gestural threats, 3 instances of manipulation of staff, 171 instances of oppositional behavior, 1

instance of physical assault, 57 instances of physical aggression, 13 instances of property

destruction, 3 instances of verbal intrusiveness, 3 instances of self-abuse, 2 instances of physical 9

or verbal intrusiveness, 1 instance of stealing, 37 instances of sexual aggression, 41 instances of

sexualized verbalizations, 44 instances of teasing and provoking peers, 106 instances of being

unaccountable to staff, 14 instances of verbal abuse, 46 instances of verbal outbursts, 3 instances

of verbal threats, 3 instances of whining, 21 instances of physical intrusiveness, 94 instances of
 Leah’s behavior during the subsequent one-month period was largely the same, with fewer instances of certain 10

behaviors and additional instances of behaviors such as self-abuse and sexual intrusiveness. She was contained or

restrained twenty-six times during the reporting period.

Page 11 of 34

sexual intrusiveness, and 27 instances of therapy refusal. The report noted that Leah was 10

contained or restrained twenty times during the same period, which Dr. Mehta considered very

high. Ray Spell, a nurse manager at the TNRC who interacted with Leah and was familiar with

her case, testified that her behavior was worse during school. Dr. Mehta considered Leah one of

her most difficult patients, and attributed her behavioral difficulties to three factors: first, Leah

was testing her limits in the restrictive TNRC placement; second, Dr. Mehta made many changes

in Leah’s medications in an attempt to find the correct medication for her disorders, and this

likely contributed to her behavioral outbursts; and finally, Leah’s bipolar disorder caused rapid

and cyclical changes in her mood and behavior. Dr. Mehta testified that Leah’s behavior did not

significantly improve until August 19, 2004, shortly after Leah started taking the medication

Clozaril. She attributed the improvement to a combination of the structured environment of the

TNRC, medication, and intensive counseling and therapy sessions. Despite these improvements,

Dr. Mehta noted that Leah would likely be rebellious and need supervision and structure for a

long time, given that her oppositional behavior causes her to test limits frequently.

When Leah was discharged from the TNRC on November 12, 2004, Dr. Mehta

recommended that Leah attend a special education class with one-on-one supervision to prevent

behavioral problems that arise when Leah is left unsupervised. 

C. The Final ARD Committee Meeting

In June 2004, approximately two months after Leah’s parents unilaterally removed her

from the District, her parents requested an ARD Committee meeting to ask for placement of
 The June 2004 IEP also noted that “Leah can read at a 4th grade level; however her emotional stability greatly 11

affects her ability to perform.”

Page 12 of 34

Leah by the District at the TNRC. Leah’s parents provided the ARD Committee with Leah’s

assessments from the TNRC, and the group convened on three days—June 9, 17, and 23—to

discuss Leah’s placement. The ARD Committee ultimately denied the parents’ request that Leah

be placed in a residential setting, finding that the District could provide her an appropriate public

education in a public setting. The IEP developed at the June 2004 meeting was substantially

similar to Leah’s previous IEPs, with several exceptions. The June 2004 IEP noted that Leah’s

parents reported sexually inappropriate and physically and verbally aggressive behavior at the

TNRC. Additionally, the IEP stated that “[i]f Leah were to become a threat to the safety of

others or herself, a therapeutic hold will be used by trained personnel.” However, it provided for

line-of-sight supervision only of Leah outside the classroom: “Following her too closely could

lead to increasing her agitation [and] oppositional feeling.” The IEP placed Leah in the Behavior

High School Program at RHS with one-on-one adult supervision all day, which was the case

when Mitchell taught Leah prior to her removal from the District. It included the goals of having

Leah progress to a beginning-fifth-grade level in mathematic reasoning, a mid-fifth-grade level in

mathematic calculation, a beginning-fifth-grade level in reading, and a beginning-fourth-grade

level in writing. Finally, the IEP included twenty thirty-minute in-home training sessions, and

twenty thirty-minute parent-training sessions. Before the ARD Committee, Leah’s parents 11

argued that the District was adequately accounting neither for the behavior that Leah exhibited,

nor for the academic regression documented at the TNRC and the UCS.

Leah’s parents elected to keep Leah at the TNRC, until she was discharged on November

12, 2004. They filed a request for an administrative due process hearing on July 28, 2004,
Page 13 of 34

alleging that the District failed to provide a free appropriate public education to Leah, and

requesting reimbursement for her placement at the TNRC from April 1, 2004 onward. The

presiding Hearing Officer found that the District had not provided Leah with a free appropriate

public education and awarded Defendants $56,000 for their costs associated with Leah’s

placement at the TNRC. The District challenges the Hearing Officer’s determinations.

ANALYSIS

In reviewing a state hearing officer’s decision in an impartial due process hearing

conducted under the IDEA, federal district courts receive the administrative record and additional

evidence requested to be made a part of the record by any party. 20 U.S.C.

§ 1415(i)(2)(C)(i)–(ii). Although the court is required to reach an independent decision based on

a preponderance of the evidence, this requirement “is by no means an invitation to the courts to

substitute their own notions of sound educational policy for those of the school authorities which

they review.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester County v.

Rowley, 458 U.S. 176, 206 (1982). Instead, “due weight” is to be given to the hearing officer’s

decision. Id. To emphasize, “courts must be careful to avoid imposing their view of preferable

educational methods upon the States. The primary responsibility for formulating the education to

be accorded a handicapped child, and for choosing the educational method most suitable to the

child’s needs, was left by the Act to state and local educational agencies in cooperation with the

parents or guardian of the child.” Id. at 207.

Thus, in reviewing a parent’s or guardian’s challenge to a school district’s provision of

educational and related services to a disabled child, a court asks first whether the school district

complied with the relevant procedures of the IDEA, and second whether the IEP developed
Page 14 of 34

through those procedures was “reasonably calculated to enable the child to receive educational

benefits.” Rowley, 458 U.S. at 207; see also Michael F., 118 F.3d at 248. Leah’s parents do not

levy a procedural challenge; thus, if the Court finds that the District implemented an IEP for Leah

that was reasonably calculated to enable her to receive educational benefits, the District is

absolved of further responsibility. Rowley, 458 U.S. at 207. If the Court finds otherwise, it must

examine Defendants’ request for reimbursement for the costs associated with unilaterally

removing Leah from the District and placing her at a residential institution: where a “suitable or

‘appropriate’ public educational placement is not available for a disabled child within a state or

local school district, the district must pay the costs of sending the child to an appropriate private

institution.” Michael F., 118 F.3d at 248; see also Town of Burlington v. Dep’t of Educ., 471

U.S. 359, 369 (1985) (concluding that the IDEA authorizes courts to “reimburse parents for their

expenditures on private special education for a child if the court ultimately determines that such

placement, rather than a proposed IEP, is proper under the Act”). Reimbursement is available

where parents unilaterally withdraw a child from an inappropriate public setting, so long as the

private placement was proper under the IDEA. Michael F., 118 F.3d at 248. 

In Leah’s case, the Hearing Officer found that the District did not provide a free

appropriate public education to Leah, that the residential placement of Leah was proper because

of her conditions, and that reimbursement was therefore warranted. The District now challenges

those determinations. The issues of primary importance to the Court are thus: (1) whether the

IEP that the District developed for Leah in June 2004 was reasonably calculated to enable her to

receive educational benefits, and, if not, (2) whether the parents’ unilateral placement of Leah at

the TNRC was appropriate. Before reaching those questions, however, the Court must address
 Jessica Nickels, a teacher at the TNRC, testified before the Hearing Officer that it was her understanding that 12

charter schools, such as the University Charter School, are public and provide education free of charge. 

Furthermore, at the hearing before this Court on October 4, 2006, counsel for Defendants stated that “[t]he

University Charter School is not a private school. It is a public school. Charter schools are public schools. That is

why the University Charter School has to develop individual education plans for students, because they are public

schools.” In light of Nickels’ testimony, and the concession of Defendants’ counsel, the Court finds that the UCS is

a public school. Defendants’ arguments to the contrary are unavailing.

Page 15 of 34

two issues raised by the parties. The first arises from the unique arrangement between the TNRC

and the UCS, and the second concerns which party bears the burden of proof before this Court.

A. Hybrid Placements

Assuming that the Court accepts Defendants’ argument that the District did not provide

Leah a free appropriate public education, the issue is whether her unilateral placement at TNRC

was appropriate. The appropriateness of a unilateral private placement, however, is not gauged

by the same standards applicable to alternative public placements, namely the requirements

contained within the IDEA’s definition of a “free appropriate public education.” Florence

County Sch. Dist. v. Carter, 510 U.S. 7, 9–10 (1993); see 20 U.S.C. § 1401(9). Rather,

“[r]eimbursement will be permitted under Burlington when unilateral placement by parents [in a

private setting] is generally found to be appropriate, even though it is not ‘the exact proper

placement required under the Act.’” Michael F., 118 F.3d at 248 n.13 (quoting Alamo Heights

Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 (5th Cir. 1986)); see also Burlington, 

471 U.S. 359, 369 (1985). However, the situation before the Court presents a hybrid situation,

however, that appears to be one of first impression. Specifically, the evidence before the Court

establishes that while the TNRC is a private residential facility, the UCS is a public school, and 12

Leah, while placed at the TNRC, attended the UCS. The District argues that because the UCS is

a public school, the Carter exception to judging the appropriateness of a parental placement does

not apply, such that the appropriateness of Defendants’ placement of Leah at the TNRC is
Page 16 of 34

adjudged by the requirements contained within the IDEA. In essence, the District argues that

Defendants are not entitled to have their unilateral placement of Leah judged by the generalized

standard of appropriateness as set forth in Michael F., 118 F.3d at 248 n.13.

Before responding to the merits of the District’s contention, Defendants urge that the

District has waived its ability to assert that the UCS is a public school because it did not raise the

issue before the Hearing Officer, and because the District’s briefing submitted to the Hearing

Officer, and the District’s allegations in its Original Complaint in this action, assumed Leah’s

parental placement to be a private one. The Court disagrees with Defendants’ characterization of

the District’s arguments in the Original Complaint and before the Hearing Officer. In both, the

District consistently urged application of the Michael F. factors to the UCS, factors which

incorporate portions of the IDEA’s definition of “free appropriate public education,” that would

not apply in full to private placements under Carter. 510 U.S. at 13. Defendants also argue that

the District’s Original Complaint, in paragraph 42(c), “asserted that [Leah’s] placement at [the

TNRC and the UCS] was a private placement.” Paragraph 42(c) states that the “Hearing Officer

erred as a matter of law by failing to place the burden of proof on [Defendants] to show that the

private placement at [the TNRC] and [the UCS] provided Leah with an appropriate education.” 

The paragraph goes on to argue for application of the Michael F. factors. This paragraph cannot

be read as “asserting” that Leah’s placement was private. Furthermore, contrary to Defendants’

argument that they “admitted” to the facts contained in the referenced paragraph, which might

establish them as undisputed pursuant to Federal Rule of Civil Procedure 8, in their Answer,

Defendants specifically denied the allegations in paragraph 42(c). Accordingly, the Court finds
 Since July 1, 2005, § 1401(9) has contained the definition of “free appropriate public education” that the Supreme 13

Court addressed in Carter as § 1401(a)(18). See Carter, 510 U.S. at 9; 20 U.S.C. § 1401(9); Individuals with

Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, § 602, 118 Stat. 2647, 2652–59 (2004)

(codified at 20 U.S.C. § 1401). That amendment does not alter the analysis in this case.

Page 17 of 34

that the District has not waived its ability to argue that Leah’s placement by her parents was a

private one.

As to the merits of the District’s argument, the Court respectfully disagrees with the

District’s position. Although it does not appear that any court has addressed by what measure the

appropriateness of a hybrid placement is judged, the Court determines that it is bound by the

Supreme Court’s pronouncement in Carter. In Carter, the Supreme Court addressed “whether a

court may order reimbursement for parents who unilaterally withdraw their child from a public

school that provides an inappropriate education under [the] IDEA and put the child in a private

school that provides an education that is otherwise proper under [the] IDEA, but does not meet

all the requirements of [20 U.S.C. § 1401(9)].” Carter, 510 U.S. at 9. The Supreme Court held 13

that a court may order such reimbursement, “because [§ 1401(9)’s] requirements cannot be read

as applying to parental placements.” Id. at 13 (emphasis added). Even assuming that the

Supreme Court used the phrase “parental placements” with the understanding that such

placements invariably involve private schools, the logic undergirding Carter comfortably extends

to the case before this Court. The Supreme Court based its decision on the observation that the

requirements of § 1401(9) “do not make sense in the context of a parental placement.” Id.

Section 1401(9) defines “free appropriate public education” as special education and related

services that

(A) have been provided at public expense, under public supervision and direction,

and without charge;

(B) meet the standards of the State educational agency;
 The IEP developed by the UCS states that a number of services will be provided to Leah by the TNRC—including 14

full-time supervision, physical therapy, occupational therapy, and counseling—but those are clearly provided at

private expense by the TNRC by agreement.

Page 18 of 34

(C) include an appropriate preschool, elementary school, or secondary school

education in the State involved; and

(D) are provided in conformity with the individualized education program

required under section 1414(d) of this title.

As with private placements, these requirements are ill-suited to address hybrid scenarios, which

involve a mix of education or related services provided at private expense by institutions not

bound by the requirements of the IDEA or even necessarily by state educational agencies. For

example, in Leah’s case, although the UCS is a public school that in fact developed an IEP for

Leah, an integral part of her education involved her residential placement at the TNRC, over

which the UCS could exercise no actual control through the IEP it developed for Leah.14

Furthermore, hybrid placements allay in part the concern—expressed by the petitioning school

district in Carter—that reimbursement exacts a heavy toll from “financially strapped local

educational authorities,” as the cost of the public component of a hybrid placement is already

controlled by the local educational agency. See id. at 15. For these reasons, the Court concludes

that the requirements of § 1401(9) “cannot be read as applying to parental placements,” where, as

here, parents or a guardian place a disabled child in a private residential facility with publicly

provided education. Consequently, in reviewing the appropriateness of Leah’s residential

placement at the TNRC and the UCS, the Court will address only whether the placement “is

generally . . . appropriate, even though it is not ‘the exact proper placement required under the

Act.’” Michael F., 118 F.3d at 248 n.13 (quoting Alamo Heights, 790 F.2d at 1161).
Page 19 of 34

B. Burden of proof

In the Fifth Circuit, “a party attacking the appropriateness of an IEP established by a local

educational agency bears the burden of showing why the IEP and the resulting placement were

inappropriate under the IDEA.” Michael F., 118 F.3d at 252. In this case, Leah’s parents

challenged Leah’s IEP in a state administrative proceeding and prevailed. The parties dispute

whether the burden still lies with the parents in this proceeding, given that the District appeals

the Hearing Officer’s determination. The Court is aware of no authority that transfers the

burden, as Defendants request, to a school district when the parents or guardian of a disabled

child prevail at the administrative proceeding. Indeed, although it appears that the Fifth Circuit

has not expressly stated so, it has applied the burden set forth in Michael F. to parents who

prevailed below, including in the Michael F. case itself. Id.; see also Houston Indep. Sch. Dist.

v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000). Defendants, relying on Schaffer v. Weast, argue

that the default rule of placing the burden of persuasion on the party seeking relief should apply. 

546 U.S. 49, 51 (2005). There, the Supreme Court addressed the issue of which party in an

administrative hearing, requested pursuant to the IDEA, bears the burden of proof. Id. In a

narrow holding, the Court stated that the “burden of proof in an administrative hearing

challenging an IEP is properly placed upon the party seeking relief.” Id. at 62. Although it is

clear that the Supreme Court did not address the burden of persuasion in a proceeding such as

that before this Court, the logic of Schaffer may extend to placing the burden in this proceeding

upon the District; however, it is the Fifth Circuit’s prerogative to conclude as much and, in

effect, overturn the implicit holding of Michael F. that appears to bind this Court. In any event,
 The parties dispute the significance of the word “meaningful.” It is clear that an IEP need not actually produce 15

meaningful educational benefit, but equally clear that the Fifth Circuit considers actual benefit relevant to the

determination of whether the IEP was reasonably calculated to produce meaningful benefit. Michael F., 118 F.3d at

248, 253–56.

Page 20 of 34

resolution of the question is not outcome determinative, so the Court assumes without holding

that Defendants bear the burden of proof in challenging the District’s proposed IEP of June 2004.

C. The District’s IEP

As set forth above, the first question the Court must address in determining whether

Leah’s parents are entitled to reimbursement for withdrawing her from the District and placing

her at the TNRC and the UCS is whether “an IEP calling for placement in a public school was

inappropriate under the IDEA.” Michael F., 118 F.3d at 248. The inquiry does not turn upon

whether the District provided Leah with an education designed to maximize her potential. Id. at

247–48. As the IDEA guarantees a “basic floor or opportunity,” the District is only bound to

provide “access to specialized instruction and related services which are individually designed to

provide educational benefit.” Rowley, 458 U.S. at 201. “Nevertheless, the educational benefit to

which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de

minimis; rather, an IEP must be ‘likely to produce progress, not regression or trivial educational

advancement.’” Michael F., 118 F.3d at 248 (footnotes omitted) (quoting Bd. of Educ. of the E.

Windsor Reg’l Sch. Dist. v. Diamond, 808 F.2d 987, 991 (3d Cir. 1986)). In other words, an IEP

must be geared to provide “meaningful” educational benefit. Rowley, 458 U.S. at 192; see also

15

Michael F., 118 F.3d at 248. In determining whether an IEP satisfies this standard, the Fifth

Circuit has endorsed consideration of the following factors: (1) whether the program is

individualized on the basis of the student’s assessment and performance; (2) whether the

program is administered in the least restrictive environment; (3) whether the services are
 The point is further confirmed by the assessment conducted by TNRC upon Leah’s admission in April 2004, which 16

placed her reading skills at the first- or second-grade level.

Page 21 of 34

provided in a coordinated and collaborative manner by the key “stakeholders”; and (4) whether

positive academic and non-academic benefits are demonstrated. Michael F., 118 F.3d at 253. In

this case, Leah’s parents do not contest that Leah’s IEP was administered in the least restrictive

environment; indeed, it would be strange to contest this prong while simultaneously arguing, as

Defendants do, that only residential placement is appropriate. Instead, they argue that the

remaining three factors demonstrate that the District’s proposed placement of Leah, at the June

2004 ARD Committee meeting, was inappropriate.

As is evident from the Court’s review of the record, the District’s obligation to provide

Leah a free appropriate public education during her ninth-grade year turned into a Sisyphean

challenge: every brief period of modest gain ended in acute regression, with no progress from

peak to peak. In fact, Leah’s last teacher at the District, Jeannie Mitchell, used second-grade

instructional materials even though Leah’s eighth-grade assessment placed her reading and

arithmetic levels at those of a fourth-grade student, and even though the IEP developed at the

beginning of Leah’s ninth-grade year included the goal of improving her reading skills in

comprehension to those of a proficient third-grade student, and of improving her mathematics

skills to those of a fifth-grade student. The District’s attempts to adduce evidence of Leah’s

16

educational benefit at Westwood and RHS are belied by a consistent pattern of regress. It is true,

as the District contends, that Leah was able to complete various school assignments at certain

points during her ninth-grade year; however, Leah’s progress in those instances bears little

connection to the goals stated in her IEP, and corresponds strongly to a cyclical pattern of

behavioral and academic regress. This is not particularly striking, given the difficultly the
Page 22 of 34

District experienced in keeping Leah in the classroom. She routinely came to class late, left

without permission, and roamed the halls without supervision. Accordingly, the Court agrees

with the Hearing Officer’s conclusion that “the evidence is quite sparse regarding meaningful

progress either academically or non-academically for Leah during the 2003–2004 school year.” 

In making this finding, the Court accords due weight to the Hearing Officer’s conclusion, which

was reached with the benefit of educational expertise and having all evidence presented directly

to her. 

As Defendants argue that only residential placement of Leah is appropriate, perhaps more

legally significant than the District’s failure to provide actual academic or non-academic benefit

to Leah is the District’s inability to address the causes of that failure. It is evident from the

record that Leah’s behavioral difficulties caused her frequent absence from the classroom. This

is confirmed by the IEP of September 25, 2003, which required supervision of Leah at all times

and that she stay in the classroom unless she had permission to leave. The ARD Committee and

Leah’s parents clearly recognized this problem, by the agreed inclusion in Leah’s IEP of

measures to address it. Nevertheless, the evidence establishes that the District, despite the IEP,

was unable to keep Leah consistently in the classroom. Even when Leah was in the classroom,

there is reason to doubt that her education was provided in a truly collaborative fashion by her

teachers. There is no doubt that the relevant parties participated in all of Leah’s ARD Committee

meetings, but it is less clear that those actually charged with her education, such as Mitchell,

collaborated to provide an appropriate education. Mitchell testified that although the District

selected her to give Leah one-on-one instruction at RHS, she was not provided with Leah’s IEP,

and she encountered difficultly when seeking assistance from other teachers.
 Although the District is correct that the controlling inquiry in determining whether Leah’s proposed IEP was 17

appropriate is whether the IEP was reasonably calculated to provide meaningful educational benefit, the

implementation and results of past IEPs are potentially relevant in addressing the factors set forth in Michael F., 118

F.3d at 253. The implementation and results of past IEPs are especially relevant where, as here, the school district’s

past efforts to provide a free appropriate public education failed over an extended period of time, such that the

failure of the past IEPs was not aberrant, and a court can conclude that it would be unreasonable to expect the

proposed IEP to provide meaningful educational benefit.

 The District attacks the reliability of the TNRC assessment of Leah on a number of other grounds as well. The 18

various critiques are undercut by the correlation between the results of the TNRC’s assessments and the actual level

of the instructional materials used by both Henderson and Mitchell to teach Leah while at Westwood and RHS. 

Furthermore, a number of the critiques are inapt in light of the Court’s determination that hybrid placements are not

judged by the same standards applicable to public placements. See Carter, 510 U.S. at 13.

Page 23 of 34

Based on the Michael F. factors, the Court further determines that the District’s proposed

placement of Leah at RHS in the IEP of June 2004 was inappropriate. In this case, it is clear that

Leah could receive no educational benefit from the proposed placement because the District’s

IEP was not reasonably calculated to provide any educational benefit to Leah. Her frequent 17

outbursts, caused by her emotional and behavioral disorders, made it difficult for the District to

keep Leah in the classroom, and resulted in serious educational regression that frustrated the

District’s ability to provide her any benefit. Leah’s final outburst prior to leaving the District

exemplifies the problem: subsequent testing at the TNRC revealed that her reading and

mathematics levels were far lower than the District considered them to be. The District responds

that the testing done at the TNRC is unreliable, principally because Leah was uncooperative and

refused all educational services at the time of her evaluation. The District’s argument 18

misconstrues the function of the IDEA. Undoubtedly, special education provided pursuant to

the IDEA often involves accommodating severe behavioral problems that make instruction and

testing quite difficult. Leah’s situation is representative. The District cannot simply respond,

however, that Leah performs well when tested at the “appropriate” time, as this effectively

assumes away her disability. Rather, the District must provide Leah an appropriate education in
Page 24 of 34

spite of her disability. This is not to suggest anything more than that the District is obligated to

implement a plan reasonably calculated to provide meaningful benefit to Leah. 

Accordingly, the Court concludes that Leah’s proposed public placement by the District

in the June 2004 IEP was inappropriate and not reasonably calculated to confer any educational

benefit upon Leah.

D. Leah’s Residential Placement

Having found that the District’s proposed public placement of Leah was not reasonably

calculated to provide educational benefit, the Court turns to Defendants’ unilateral placement of

Leah in a residential facility. See 20 U.S.C. § 1412(a)(10)(C). The Court must determine

whether Leah’s residential placement was appropriate under the IDEA. Michael F., 118 F.3d at

248. “Despite the statutory preference for mainstream placements, the IDEA recognizes that

some disabled students need full-time care in order to receive educational benefit.” Indep. Sch.

Dist. No. 284 v. A.C., 258 F.3d 769, 774 (8th Cir. 2001). In such cases, “[a]nalysis must focus

. . . on whether full-time placement may be considered necessary for educational purposes, or

whether the residential placement is a response to medical, social or emotional problems that are

segregable from the learning process.” Kruelle v. New Castle County Sch. Dist., 642 F.2d 687,

693 (3d Cir. 1981).

On this issue, the Court finds that Leah could achieve no academic progress short of

residential placement, and thereby agrees with the Hearing Officer’s determination that although

Leah’s stay at the TNRC had a medical purpose, that purpose “was inextricably intertwined with

the behavior and educational problems Leah had.” The District relies heavily upon Swift v.

Rapides Parish Public School System to argue that Leah could achieve meaningful benefit short
Page 25 of 34

of residential placement. 812 F. Supp. 666 (W.D. La. 1993). In Swift, “a head-count of clinical

experts indicate[d] that residential placement [was] necessary for [the disabled student] to make

progress consistent with his abilities.” Id. at 672. Despite his public placement, he was receiving

“meaningful educational benefit in his current placement.” Id. at 673. Faced with such evidence,

the court in Swift correctly found that the IDEA does not require optimized education, but simply

an education “designed to confer some meaningful educational benefit on the child.” Id. at 673

(emphasis in original) (citing Rowley, 458 U.S. at 200–01). The facts here differ. Dr. Mehta,

who treated Leah at the TNRC, testified that Leah was extremely difficult in the first part of her

stay at the TNRC: she exhibited extreme physical and sexual aggression, and engaged in selfmutilation. Her behavior was worse during school hours, according to a nurse manager at the

TNRC, and Leah was frequently restrained to prevent her from physically or sexually intruding

upon her peers, and was persistent in frustrating attempts at order and structure. The

oppositional behavior exhibited by Leah at the TNRC was consistent with that at Westwood and

RHS. There, Leah evaded her teachers and left class without permission. In contrast to the

District’s inability to cope with Leah’s behavior, the extremely structured environment of the

TNRC and the UCS allowed Dr. Mehta and others to address Leah’s behavioral problems so that

she could benefit from instruction. Specifically, employees of the TNRC supervised Leah at all

times, provided extensive counseling and therapy, and reacted immediately to all behavioral

outbursts.

The District is correct in noting that despite the alleged advantages of Leah’s residential

placement, she did not actually meaningfully progress for much of her time at the TNRC and the

UCS. The severity of Leah’s conditions precluded educational progress, however, until her
 The District additionally argues that Leah’s placement at the TNRC and the UCS was due to problems at home. 

19

Although the precipitating event that led to Leah’s withdrawal from the District and interim-placement at the Seay

Center was an altercation with her father at home, the overwhelming evidence indicates that Leah’s problems at

home were minimal compared to her behavioral difficulties at school. This is confirmed by the observation at the

TNRC that Leah’s behavior worsened during school hours. The District additionally argues that the ultimate

determination that Leah’s placement at the TNRC was medically necessary, made by Defendants’ insurance agency

after Defendants appealed the denial of insurance coverage for Leah’s placement at the TNRC, means that the

Hearing Officer erred, and that this Court would err, in concluding that Leah’s placement had non-educational

purposes. An insurance agent’s determination of medical necessity is not dispositive. The relevant question here is

whether the medical purposes were segregable from the educational ones, not simply whether medical purposes

existed.

Page 26 of 34

behavioral problems could be managed to allow beneficial instruction. Leah’s “main learning

problem is [her] inability to cooperate with authority. Accordingly, the only appropriate

placement for [Leah] is one which specifically takes into account and provides for this lack of

cooperation.” Clevenger v. Oak Ridge Sch. Bd., 744 F.2d 514, 516 (6th Cir. 1984); see also Mrs.

B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997) (“If institutionalization is required

due to a child’s emotional problems, and the child’s emotional problems prevent the child from

making meaningful educational progress, the Act requires the state to pay for the costs of the

placement.”). This finding is confirmed by the progress that Leah achieved toward the end of 19

her stay at the TNRC.

The Court therefore concludes that the only appropriate placement of Leah in June 2004

was at a residential facility. Any progress in Leah’s education during that time was unlikely, but

it is clear that only the structured environment of a residential placement could offer her any hope

of benefit.

E. Reimbursement

Having concluded that the District’s proposed placement of Leah in June 2004 was

inappropriate and that her residential placement was appropriate, the Court must now determine

the reimbursement to which Leah’s parents are entitled. 20 U.S.C. § 1412(a)(10)(C). 
 Defendants’ insurance provider covered approximately ninety days of Leah’s placement at the TNRC, from April 20

2004 until July 1, 2004. Thus, although the Hearing Officer concluded that the District had notice of Defendants’

desire to place Leah at the TNRC at public expense by June 2, 2004, the Hearing Officer did not include in her

calculation reimbursement for expenses incurred between June 2, 2004 and July 1, 2004.

Page 27 of 34

Defendants removed Leah from the District as of April 2004, and an ARD Committee convened

on June 9, 2004 to discuss Defendants’ request for residential placement of Leah at public

expense. The Hearing Officer found that the District had actual notice of Defendants’ desire to

place Leah at the TNRC at public expense by June 2, 2004, and awarded reimbursement for all

expenses incurred by Defendants after June 2, 2004, except for those covered by Defendants’

insurance carrier, which provided coverage until July 1, 2004. The District requests that any 20

reimbursement award be reduced or denied principally because Defendants failed to comply with

the statutory notice requirements of the IDEA.

The first issue for the Court to determine is what costs associated with Leah’s placement

at the TNRC are reimbursable. The IDEA guarantees a free appropriate public education that

consists of “special education and related services.” 20 U.S.C. § 1401(9). In relevant part,

special education includes “instruction conducted . . . in hospitals and institutions, and in other

settings.” 20 U.S.C. § 1401(29); see also Mrs. B., 103 F.3d at 1121 (“The IDEA explicitly

provides that in certain cases a state may have to pay for institutionalized care for a handicapped

child.”). The portion of Leah’s placement spent at the UCS was apparently provided at public

expense, free of charge to Defendants. The relevant inquiry therefore turns on what services

were provided Leah by the TNRC and whether those services are “related services” under the

IDEA. Related services “means transportation, and such developmental, corrective, and other

supportive services . . . as may be required to assist a child with a disability to benefit from

special education, and includes the early identification and assessment of disabling conditions in
Page 28 of 34

children.” 20 U.S.C. § 1401(26)(A). The IDEA lists the following as examples of related

services: “speech-language pathology and audiology services, interpreting services, psychological

services, physical and occupational therapy, recreation, including therapeutic recreation, social

work services, school nurse services designed to enable a child with a disability to receive a free

appropriate public education as described in the individualized education program of the child,

counseling services, including rehabilitation counseling, orientation and mobility services, and

medical services.” 20 U.S.C. § 1401(26)(A). However, “medical services shall be for diagnostic

and evaluation purposes only,” and related services do not include “a medical device that is

surgically implanted, or the replacement of such device.” 20 U.S.C. § 1401(26)(A)–(B). 

Regulations promulgated under the IDEA clarify what costs associated with residential

placement are reimbursable: “If placement in a public or private residential program is necessary

to provide special education and related services to a child with a disability, the program,

including non-medical care and room and board, must be at no cost to the parents of the child.” 

34 C.F.R. § 300.104. The parties have not addressed this specific issue in the briefing before the

Court. Accordingly, if the parties cannot agree on the amount, the Court ORDERS Defendants

to submit, by September 4, 2007, a brief regarding the specific costs incurred in Leah’s

placement at the TNRC, with citations to the record and specific argument as to whether each

particular cost is reimbursable. The District may respond by September 11, 2007. The parties

shall take into account the Supreme Court’s guidance in Cedar Rapids Community School

District v. Garrett F., 526 U.S. 66, 73–74 (1999) (“the term ‘medical services’ refer[s] only to

services that must be performed by a physician, and not to school health services”). 

Alternatively, the parties may stipulate, by September 4, 2007, as to the specific amount of
Page 29 of 34

reimbursement that Defendants are entitled to by the preceding portions of this Memorandum

Opinion and Order, without prejudice to either parties’ ability to appeal the balance of this Order.

The District requests that the Court reduce or deny reimbursement for Leah’s parents’

failure to provide adequate notice of their intent to withdraw Leah from RHS and place her at the

TNRC. The “cost of reimbursement . . . may be reduced or denied” for a variety of reasons,

including failure by a disabled student’s parents to provide adequate notice to the ARD

Committee of their intent to withdraw the student from the public placement and place her in an

alternative setting at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii). Leah’s parents concede

that they did not provide Leah’s ARD Committee with notice when they withdrew her from the

District, but argue that a statutory exception should apply. Section 1412(a)(10)(C)(iv)(I)(cc)

provides that the cost of reimbursement “shall not be reduced or denied for failure to provide

such notice if . . . compliance . . . would likely result in physical harm to the child,” and

§ 1412(a)(10)(C)(iv)(II)(bb) provides that the cost of reimbursement “may, in the discretion of a

court or a hearing officer, not be reduced or denied for failure to provide such notice if . . .

compliance . . . would likely result in serious emotional harm to the child.” Leah’s parents argue

that one of the exceptions should apply because Leah was placed at the Seay Center on the

recommendation of Dr. Jaeckle, her psychiatrist. They contend in their briefing that Dr. Jaeckle

“recommended that she be placed in a locked, residential facility immediately.” For support,

they initially cite Leah’s mother’s testimony, which indicates that Dr. Jaeckle recommended that

Leah be taken to the Seay Center, a day treatment psychiatric facility. The cited testimony does

not support Defendants’ contentions in their briefing: it does not indicate that Leah was in danger

of physical or serious emotional harm absent immediate removal, and it does not state that Dr.
Page 30 of 34

Jaeckle recommended a “locked, residential facility immediately.” The parents additionally point

to a letter authored by Dr. Jaeckle on May 17, 2004, in which he states that Leah “is a threat to

herself and to others through her sexual behavior with boys and aggressiveness toward her

younger sister.” The letter does not indicate that she presented that same threat six weeks earlier

when she was removed from the District, or that failure to remove her might result in physical or

serious emotional harm. Finally, Defendants point to an incident at home where Leah scratched

her father’s arm so that it bled. The facts surrounding the incident are not clearly elaborated

upon in the record, yet it appears that Leah and her father argued about something. Absent more,

the Court cannot conclude that Leah’s escalated argument, at home, with her father evidences

potential physical or serious emotional harm to Leah at school if she were not withdrawn. 

Accordingly, the Court agrees with the Hearing Officer that the statutory exceptions to the notice

requirement of § 1412(a)(10)(C) do not apply.

As the exceptions do not apply to Defendants’ failure to provide adequate notice,

reimbursement may be denied, reduced, or awarded in full, pursuant to the discretion afforded by

§ 1412(a)(10)(C). In exercising such discretion, the Hearing Officer found that the District had

actual notice of Defendants’ desire to place Leah at the TNRC at public expense, by June 2,

2004, and awarded reimbursement for all expenses incurred by Defendants after June 2, 2004,

except for those covered by Defendants’ insurance carrier, which provided coverage until July 1,

2004. The result was an order of reimbursement of $56,000. The Court agrees with the Hearing

Officer’s finding that the District knew by June 2, 2004 of Defendants’ intent to place Leah at the

TNRC. Therefore, the Court finds it appropriate to reimburse the parents for reimbursable

expenses incurred after that date. In exercising its discretion in this manner, the Court is not
Page 31 of 34

persuaded by the District’s contentions that Defendants acted unreasonably or were responsible

for the District’s inability to provide an appropriate education to Leah. Leah’s parents

cooperated on numerous occasions with Leah’s ARD Committee to develop an IEP for her, and

requested at the final meeting that the ARD Committee take into account the TNRC’s reports of

Leah’s progress, which evidenced severe regression. The ARD Committee’s proposed

placement did not, in the Court’s view, account for the latest evidence of Leah’s academic and

behavioral status. The Court is similarly unpersuaded by the District’s argument that had

Defendants raised the prospect of residential placement in a timely fashion, it could have

properly addressed the request. In support, the District argues that it would have, among other

things, made an on-site visit to the TNRC to determine whether it could provide the services

listed in Leah’s IEP, and verified that the TNRC met the requisite standards for health and safety. 

There is no evidence that the District performed such due diligence when given the opportunity

in June 2004.

Defendants contest the Hearing Officer’s refusal to reimburse those costs incurred during

the reimbursable period that were covered by Defendants’ insurance provider. The District does

not respond. The Court agrees with Defendants “that parents of a handicapped child cannot be

required to utilize their private medical insurance benefits where the utilization of those benefits

would cause them to incur a financial cost. Any other conclusion would be inconsistent with the

concept of a free appropriate public education.” Seals v. Loftis, 614 F. Supp. 302, 305–306 (E.D.

Tenn. 1985) (emphasis added); see also Raymond S. v. Ramirez, 918 F. Supp. 1280, 1293–94

(N.D. Iowa 1996). A reduction in lifetime benefits under an insurance policy constitutes such a

loss. Seals, 614 F. Supp. at 306; Ramirez, 918 F. Supp. at 1294. Defendants are therefore
Page 32 of 34

entitled to reimbursement of allowed costs that caused a reduction in lifetime benefits under their

insurance policy. In filing the supplemental briefing ordered above, Defendants shall also detail

the specific amount of the reduction in lifetime benefits that they claim they incurred as a result

of the residential placement of Leah after June 2, 2004. They shall also address what portion of

that cost is reimbursable under the IDEA, and what portion was spent on medical services not for

diagnostic and evaluation purposes. Alternatively, as above, the parties may stipulate as to the

amount of the reduction in lifetime benefits incurred by Defendants that is reimbursable under

the IDEA.

REHABILITATION ACT OF 1973

Defendants previously requested that the Court dismiss their claims under § 504 of the

Rehabilitation Act of 1973. See 29 U.S.C. § 794. The Court dismissed those claims with

prejudice in its Memorandum Opinion and Order of June 19, 2006. Defendants mistakenly

reasserted those claims in their Motion for Judgment on the Record, and the District requests that

the Court, in addition to reaffirming its dismissal of those claims, sanction Defendants for the

mistake. Defendants admitted the error and withdrew their reassertion of the claims. The Court

declines to sanction Defendants for what appears to be an innocent lapse and declines to award

the District attorneys’ fees for time spent responding, as little to no response was merited.

ATTORNEYS’ FEES

Defendants request that the Court award them attorneys’ fees pursuant to 20 U.S.C.

§ 1415(i)(3)(B)(i)(I), which allows such an award in a case brought pursuant to the IDEA “to a

prevailing party who is a parent of a child with a disability.” The District responds by moving

the Court to strike Defendants’ affidavit testimony regarding the expenditure of such fees. The
Page 33 of 34

ensuing dispute between the parties, which focuses on whether Defendants are now allowed to

present additional evidence as to the amount of such fees, consumes nearly twenty pages of the

parties’ briefing and borders on the absurd. Notwithstanding the IDEA’s provision of attorneys’

fees, Federal Rule of Civil Procedure 54(d)(2) states that “[u]nless otherwise provided by statute

or order of the court, the motion [for attorneys’ fees and related nontaxable expenses] must be

filed no later than 14 days after entry of judgment,” and “must state the amount or provide a fair

estimate of the amount sought.” Now that the Court has determined that the District failed to

provide a free appropriate public education to Leah and that her residential placement was

appropriate, it is clear that Defendants are the prevailing party. The Court therefore exercises the

discretion granted to it pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) to award Defendants

reasonable attorneys’ fees and costs. The amount of such fees and costs is now ripe for

determination. The District’s arguments to the contrary make too much of the Court’s

Memorandum Opinion and Order of June 19, 2006, which ordered the presentation of “additional

evidence” pursuant to 20 U.S.C. § 1415(i)(2)(C). Section 1415(i)(2)(C) requires a district court,

in reviewing administrative proceedings initiated pursuant to the IDEA, to receive the records of

the proceedings, to hear “additional evidence,” and to base its decision on the preponderance of

the evidence. The District’s argument that “additional evidence” presented pursuant to that

provision must include evidence as to the amount of attorneys’ fees before the Court’s merits

determination is without merit. That provision plainly deals with the evidence relevant to a

district court’s review of the administrative findings and decision below. 20 U.S.C.

§ 1415(i)(2)(A). Accordingly, the District’s Motion to Strike the Appendix to Defendants’

Motion is DENIED.
Page 34 of 34

Under the authority of 28 U.S.C. § 636(b) and Rule 2(c)(3) of Miscellaneous Order No. 6

of this District, it is ORDERED that the issue of the amount of reasonable attorneys’ fees and

costs to which Defendants are entitled is hereby REFERRED to United States Magistrate Judge

Irma C. Ramirez for hearing, if necessary, and determination, following the parties’ briefing of

the matter. Defendants shall file their motion for attorneys’ fees and costs by September 10,

2007, and the District shall respond by September 21, 2007. To the extent that the District

requests discovery on the issue of attorneys’ fees, it shall make that request to United States

Magistrate Judge Ramirez, who will determine what discovery to permit.

All future filings regarding the referred matter should be addressed to United States

Magistrate Judge Ramirez, not to the district judge, and shall be accompanied by a transmittal

letter addressed to her, so that filings will reach United States Magistrate Judge Ramirez without

delay.

CONCLUSION

It is after considered deliberation that the Court has determined that the District failed to

provide Leah a free appropriate public education and that the District is obligated to reimburse

her parents for those reimbursable costs incurred after June 2, 2004. Defendants’ Motion for

Judgment on the Record is therefore GRANTED IN PART, and DENIED as to the exception to

the statutory notice requirement of the IDEA, and the District’s Motion for Final Judgment is

DENIED. Additionally, the District’s Motions to Strike are DENIED.

SO ORDERED.

August 21, 2007. _________________________________

BARBARA M.G. LYNN

UNITED STATES DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS