Districts Should Consider Residential Placement Needs for Students in Out-of-Home Settings Initiated by Child Welfare Agencies
In M.S. v. Los Angeles Unified School District, No. 16-56472, 2019 WL 324543 (9th Cir. Jan. 24, 2019), the U.S. Court of Appeals for the Ninth Circuit agreed with the Central District of California in overturning an administrative law judge’s finding that LAUSD met its legal obligations. The District was found to have “predetermined” Student’s placement by not considering whether she may need residential placement as part of her IEP in order to receive a free appropriate public education ("FAPE"), even though she had been placed residentially already by a local child welfare agency.
M.S. was a 17-year-old student, eligible for special education and related services under the eligibility category of emotional disturbance. In 2010, when M.S. was 11 years old, the Los Angeles Department of Children and Family Services (“DCFS”) removed M.S. from her grandparents’ care. As a result, DCFS became responsible for providing M.S. with suitable housing and meeting her mental health needs based on laws governing DCFS.
In May 2012, M.S. was placed by DCFS in a locked residential facility, Harbor View Adolescent Center. While at Harbor View, M.S. broke a peer’s nose and assaulted a staff member, leading to her arrest and detention in juvenile hall. In March 2013, M.S. was released from juvenile hall, and the Juvenile Division of the Los Angeles Superior Court ordered that DCFS provide her with permanent placement services.
M.S. was subsequently placed by DCFS in another locked residential facility, Vista Del Mar Community Treatment Facility (“Vista”), within the geographic boundaries of LAUSD. While M.S. resided at Vista, LAUSD provided M.S. with special education and related services by funding her education at the nonpublic school associated with Vista.
LAUSD did not offer M.S. placement at a residential facility during the IEP meetings convened during her stay at Vista, nor did LAUSD discuss whether M.S. had an educational need for a residential setting. Instead LAUSD, offered M.S. placement at a nonpublic school until she no longer resided at Vista under DCFS’s authority. M.S., by and through her guardian, filed a due process hearing complaint alleging, among other things, that LAUSD failed to discuss placement at a residential treatment facility, predetermined its offer of placement, and should have offered a residential setting on her IEP. LAUSD argued that it was not legally obligated to discuss or consider the possibility of residential placement because DCFS “had already determined M.S.’s residential placement.” LAUSD maintained it must “focus on education…because public school districts exist for the purpose of providing educational services, not residential placements to treat severe mental health problems, and are not general-purpose social services institutions, like DCFS.” The administrative law judge found in favor of LAUSD, concluding that LAUSD “had no obligation to offer the locked Vista residence as part of its FAPE offer…because DCFS had already placed M.S. there.”
Review by the Federal Courts
In subsequent appeals to the federal appellate courts, the U.S. District Court for the Central District of California, and thereafter the Ninth Circuit, concluded that LAUSD committed procedural violations by failing to discuss or even consider whether M.S. required residential placement for educational reasons, as well as by “predetermining” its offer of FAPE. The Central District opined: “On the one hand, there is DCFS’s obligation to provide necessary and appropriate ‘permanent placement services’ pursuant to a Juvenile Court order and with consideration of M.S.’s mental health needs….On the other hand, there is the District’s independent obligation to consider whether M.S. is entitled to a residential placement, pursuant to the IDEA, in light of her educational needs.” Irrespective of a child’s out-of-home placement by DCFS, LAUSD was obligated to engage in a discussion as to whether or not M.S. required residential placement in order to receive educational benefit.
As for the predetermination issue, LAUSD limited its discussion and offer of services to whether M.S. would be provided with public or nonpublic school services while M.S. was already residing at a residential facility as initiated by DCFS. Construing M.S.’s educational needs as merely requiring a program without regard to her existing residential placement status, LAUSD relied on California Education Code Section 56157, which reads:
In providing appropriate programs to individuals with exceptional needs residing in licensed children’s institutions or foster family homes, the local educational agency shall first consider services or programs operated by public educational agencies… if those programs are not appropriate, special education and related services shall be provided by contract with a nonpublic nonsectarian school.
Both the Central District and the Ninth Circuit agreed that LAUSD’s reading of Section 56157 was contrary to federal law, as it could result in a school district avoiding the obligation to consider a continuum of placement options, including placement at a residential facility, for children placed out-of-home by DCFS. Such an outcome would not be congruent with the IDEA, as a school district could take the position, as LAUSD did here, that it was not legally required to consider residential placement as part of an IEP because of a child welfare agency’s first-in-time placement.
Impact on School Districts
When multiple government agencies are involved in a child’s life, it is important that each agency act in accordance with its own responsibilities for the child, including determining appropriate placement needs.
When convening IEP team meetings for children placed residentially by another agency, districts should take into account all information related to the other agency’s actions and the student’s overall needs, consider a continuum of programmatic options, and make available to the student a placement in their least restrictive environment. School districts and independent public charter schools should consider offering a residential setting as a child’s IEP placement, if educationally necessary, and coordinate, to the extent practicable, how and when said agency’s funding obligation would kick in given that another public agency may have assumed funding the placement through a date certain in the future, including after the IEP team meeting to make a FAPE offer. If the team decides the placement is not needed for the child to receive a FAPE, then the discussion and the factors taken into account in the decision-making should be documented in the IEP.
Questions about this case or any related questions should be presented to any of our firm’s Special Education attorneys.