### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 20101

FORT BEND INDEPENDENT SCHOOL DISTRICT , Plaintiff −Appellant ,

versus DOUGLAS A., as Ne xt F riend of Z.A.; JAN A., as N ext F riend of Z.A. , Defendants −Appellees

.

Appeal s from the United States District Court for the Southern District of Texas USDC No. 4:13

- CV

- 1063

Before SMITH , BARKSDALE , and HAYNES , Circuit Judges

. JERRY E. SMITH, Circuit Judge : *

Fort Be nd Independent School District (“FBISD”) challenges a ruling
hold ing it responsible for reimbursing the parents of one of its former students,

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 5, 2015

Lyle W. Cayce Clerk Case: 14-20101 Document: 00512928380 Page: 1 Date Filed: 02/05/2015No. 14

- 20101 Z.A., for his residential placement under the I ndividuals with Disabilities Edu

ca tion Act (“IDEA”) , 20 U.S.C. § 1400 et seq

. Because the district court erred
in concluding that the residential placement was appropriate, we reverse and render judgment for FBISD.

I. Z.A. was adopted from a Russian orphanage at age 4. After arriving in the United States and en rolling in one of FBISD’s schools, he was diagnosed with attention deficit hyperactivity disorder ( “ ADHD ” ). Start ing in 2008, FBISD created, modified, and impl emented a Section 504 educa tion plan tail

ored to Z.A.’s ADHD to assist his educational growth. 1 Z.A. attended school, assisted by the remedies outlined in the Section 504 plan, until he began exhib

iting more significant mental and emotional disabilitie s between the eighth and ninth grades. Z.A. was an eighth

- grade student during the 2011

– 12 school year. In
mid

- December 2011, he attempted suicide by swallowing pills; he came to school after the attempt and went to the nurse’s office

. The staff at FBISD also became aware that he was smoking marihuana with his parents’ knowledge.
D espite his disabilities and marihuana use, Z.A. had been pe rforming with rea
son a bl e success at school. He had done well on state

- administered stan dard

ized tests and had bragged to his teachers that he knew exactly how much effort was necessary to pass his c ourses

. In January 2012, after the suicide attempt, school officials met with Z.A.’s parents to discuss his Section 504 plan. Z.A.’s mother informed the m that he was taking medication for ADHD and depression and was seeing a

1 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), p rohibits discriminating against children on the basis of disabilities in educational settings. 2 Case: 14-20101 Document: 00512928380 Page: 2 Date Filed: 02/05/2015No. 14

- 20101 psychologist twice a month. In March 2012, school officials reconvened to discuss Z.A.’s progress. Z.A.’s parents requested a special

- education assessment at th at meeting, although the y di d not receive the consent form necessary for the testing until
June. Z.A. subsequentl y failed three courses and was required to attend sum

mer school. Once the special

- education testing was conducted, i t was deter

mined that Z.A. experienced significant emotion al deficits , involving anxiety and depression , that manifested themselves in school as withdrawal behavior. Nonetheless, Z.A.’s academic achievement was average or above average in every area tested. The evaluators concluded that he could pass his classes with preferential seating, frequent breaks, positive reinforcement, behavior

management plans, and extended times for tests and projects. In August 2012, an A dmission, R eview, and D ismiss al (“ARD”) Com mit

tee meeting was held with school official s and Z.A.’s parents to fashion an indi

vid u alized education plan ( “ IEP ” ) for Z.A. as required under the IDEA. See
20 U.S.C. § 1414(d). The ARD recommended in

- class support from special edu

ca tion staff and meetings with the school psychologist once every nine weeks. 2 After Z.A. entered high school, he refused to complete much of his school work and continued to inform teachers of his aspirations to sell marihuana. When school officials and Z.A.’s parents conducted a status meeting on Sep

tember 17 to discuss Z.A.’s progress, neither side expressed additional or graver concerns about Z.A.’s emotional or intellectual state; Z.A.’s plans for graduation, vocational sch ool, and college were discussed, 3 and the parents

con tinued to agree with the IEP.

2 The court stated that the recommendation was once a week for nine weeks, but it is undisputed in the record that the actual recommendation was for one hour eve ry nine weeks.

3 Z.A. did not attend the meeting but, before the meeting , had documented his post

high

- scho ol goals with school officials

. 3 Case: 14-20101 Document: 00512928380 Page: 3 Date Filed: 02/05/2015No. 14

- 20101
O n October 25, before the end of the first nine

- week grading period, Z.A.’s parents withdrew him from classes unilaterally and without advance
notice and placed him at RedCliff Ascent, a wilderness camp in Utah. Z.A.’s psychologist, Dr. Peacock, testified that he recommended the change to improve Z.A.’s mental

- health and substance

- abuse issues, classifying the change as a response to an emergency. In November 2012, Z.A.’s parents requested a meeting with the ARD committee , seeking reimbursement of the
cost of placing Z.A. at RedCliff. The ARD Committee denied reimbursement. After being released from RedCliff in January 2013, Z.A. entered Change Academy Lake of the Ozarks (“CALO”), a mental

- health facility in Missouri. At some point in his time at RedCliff or CALO, Z.A. was diagnosed wi th reactive attachment disorder (“RAD”) , a condition that CALO specializes in treating.

II. Z.A.’ s parents filed an administrative complaint against FBISD seeking reimbursement for the RedCliff and CALO placements. Finding that FBISD had failed to provide Z.A. with a free appropriate public education (“FAPE”) as required by the IDEA , the hearing officer ordered FBISD to reimburse the par

ents for part of their expenses at CALO. 4 FBISD sued to reverse the admin is

tr ative decision ; t he parents counter claimed, asking the court to affirm the
reimbursement order and award attor ney’s fees. The court granted judgment for the parents , ordering $7,000 per month in reimbursement for the cost of CALO, $677.60 in transportat ion costs, and $90,000 in attorney’s fees.
The court first determined that FBISD had no t made a FAPE available

4 He also found that the RedCliff placement was not eligible for reimbursement, a deci sion not at issue in this appeal. 4 Case: 14-20101 Document: 00512928380 Page: 4 Date Filed: 02/05/2015No. 14

- 20101 to Z.A., which meant that the parents were eligible for reimbursement of a pri vate placement. See 20 U.S.C. § 14 12 (a)(10)(C). Next, the court found that
the placement in CALO was appropriate, which is necessary for that place ment to be reimbursed. See Richardson ISD v. Michael Z. , 580 F.3d 286, 299 (5th Cir. 2009). FBISD challenges both of th o se determinations. We review de no vo , as a mixed question of law and fact, a decision that a placement was appropriate. Cypress

- Fairbanks ISD v. Michael F. , 118 F.3d 245, 252 (5th Cir. 1997). Findings of underlying fact are reviewed for clear

error. Id. The party seeking reimbursement for a private placement has the burden of showing that the placement was appropriate. R.H. v. Plano ISD , 607 F.3d 1003, 1016 (5th Cir. 2010).

III. FBISD challenges both the holding that it did not provide a FAPE and
the decision that the CALO placement was appropriate and therefore eligible for reimbursement. We conclude that Z.A.’s parents did not meet their burden of showing that the placement was appropriate. Because this appeal deals only with the order for reimbursement re lating to the CALO placement and attor

ney’s fees, th at conclusion suffices to reverse and render judgment for FBISD , and we do not reach FBISD’s contention that it actually provided a FAPE. For a residential placement to be appropriate under the IDEA , i t must be “1) essential in order for the disabled child to receive a meaning ful educa

tional benefit, and 2) primarily oriented toward enabling the child to obtain an education.” Michael Z. , 580 F.3d at 299. T wo factors are crucial : “whether the
child was placed at the facility for educational reasons and whether the child ’ s progress at the facility is primarily judged by educa tional achievement.” Id.

at 301. The court’s findings in sup port of the placement, though the result of a thorough opinion and c onsci en tious effort, did not properly apply Michael Z. 5 Case: 14-20101 Document: 00512928380 Page: 5 Date Filed: 02/05/2015No. 14

- 20101 in light of the evidence considered as a whole

. First, the question “whether the child was placed at the facility for educa

tional reasons” concerns the motivation of the person making the placement. It reflects the careful balance struck by the IDEA, which aims to ensure that children receive an education but which does not “shift the costs of treating a child’s disability to the public school district.” Id. at 3 00. The district court , how ever, relied on evidence showing merely that CALO would “focus on the root cause of this stu dent’s educational difficulties, ” namely, RAD

. That reli

ance was misplaced. Whether a placement will help the student is properly

c onsidered under the first criterion of the Michael Z. test. A court must deter

mine whether the student was placed in the residential program for educa

tional reasons; that he actually will realize educa tional benefits is irrelevant
under th at factor if those benefits are incidental to the reasons for placing him

. For the RedCliff placement, the evidence uniformly supports the con clu

sion that the parents placed Z.A. for noneduca tional purposes ; i ndeed, the court found that he was placed at RedCliff because his parents were con cerned that he would make another attempt at sui cide and because he had a drug prob lem. T here is, however, no evidence showing that the y then enrolled Z.A. at CALO for educational reasons

. The court’ s contrary finding is unsup ported by the evidence. Although this is only one factor in evaluating the appropri

ateness of the placement, it serves an important role in maintaining the cir

cum scribed nature of the reimbursement requirement. The second fa ctor identified in Michael Z. , “whether the child’s progress at the facility is primarily judged by educational achievement,” ensures that
th e residential program defines its own mission as primarily educational.
Mea suring progress by educational achiev ement instead of disability treat

ment is strong evidence of the placement’s purpose and goals, ensuring that the school district is being made to reimburse a program designed to remedy 6 Case: 14-20101 Document: 00512928380 Page: 6 Date Filed: 02/05/2015No. 14

- 20101
the district’ s failure to provide a FAPE.
The court did not make a finding relating to this factor, choosing instead to “place[ ] little weight” on it for a lack of evidence. The evidence, however, plainly supports finding that Z.A.’s progress was not judged primarily by edu

ca tional achievement. Dr. Ken Huey , CALO’s f ounder, stated that education is “a huge piece of what [CALO] is trying to do” and that it “work [s] really hard on the schooling.” But he also testified that the number one goal at CALO was treating RAD , and he expressly disclaimed that education was the primary focus and explained that discharge from CALO depends on progress in treating RAD , not progress in educational achievement. It is possible that Z.A. would have been unable to get an educational benefit without a certain level of suc

cess in treati ng RAD , but this factor looks at whether progress is judged pri

marily by educational achievement; measuring progress by success in treating the underlying condition, on the theory that such progress will eventually yield educational benefits as well, is i nsufficient. The court placed great emphasis on its determination that many of CALO’s services were “related services” under the IDEA, a label that describes the broad range of services for which a district may be required to offer
reimbursement. Whether the residential placement provides related services is an appropriate factor to consider in determining whether a residential place

ment was appropriate , id. at 301 , but it is not outcome

- determinative; it merely “inform[s] other factors a court may consider in determining whether the place

ment is primarily oriented toward enabling a child to obtain an edu cation.” Id. A court must still conduct “analysis of the services as a whole” to determine the placement’s primary orientation. Id. “Related s ervices” enu mer ates par

tic u lar services that are eligible for reimbursement, see 20 U.S.C. § 1401(26),
and the presence or absence of related services in a placement can be evidence of its purpose

. But for a residential placement to be appropriate, it requires 7 Case: 14-20101 Document: 00512928380 Page: 7 Date Filed: 02/05/2015No. 14

- 20101 more than j ust the inclusion of educational services, hence the broader analysis. Even if the court was correct in finding that CALO’s program included many related services, t he court erred in its application of the Michael Z. factors and in m aking its findings

. The record as a whole provides scant sup

port for the CALO placement ’s being primarily oriented toward an education. In light of the evidence of the noneducational focus of CALO and the parents’ burden to demonstrate the ap propriateness of the placement, the district court erred in concluding that the placement was appropriate. The judgment is REVERSED , and judgment is RENDERED for F BISD.

8 Case: 14-20101 Document: 00512928380 Page: 8 Date Filed: 02/05/2015