Residential Treatment Center Placements


By Dorene J. Philpot, attorney at law

When school-age children (through age 22 in some states and through age 26 in Michigan) require a therapeutic or specialty day school or a Residential Treatment Center placement in order to receive an appropriate education, it is the public school district’s responsibility to fund the costs of that placement. However, school districts are not eager to advise you of this information. Districts simply do not advertise this fact and hope you won’t find out about it on your own.

More often than you might imagine, school-age students who need a therapeutic day treatment or residential treatment center placement have never even been identified by their school district as eligible for special education, let alone informed that it is the school district’s duty to fund the needed placement. Parents accidentally stumble upon information about their rights on the World Wide Web or by talking with other parents who went down that road.

More often than you might imagine, parents must initiate litigation against the district in order to get the placement and services that the student clearly needs.

****There are numerous hearing officer and court decisions involving students in residential treatment centers and therapeutic or specialty day programs. Links to examples of these decisions from actual special education due process hearing cases or federal court appeals are at the end of this article. I regularly handle such private placement cases for students / parents.****


Often times students who need therapeutic day placement or Residential Treatment Center placement have not yet even been identified as eligible for special education and related services. This is one of the biggest violations of federal law in the special education arena.

In fact, the school district (not the parent) has an obligation of Child Find to ensure there is a practical method and policies and procedures in place to “identify, locate and evaluate” all children with disabilities, to ensure receipt of a free appropriate public education. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009).

The Child Find duty is an affirmative one that must be proactive, not passive and non-dependent upon parental vigilance. Krawietz v. Galveston Indep. Sch. Dist., 900 F. 3d 673 and 677 (5th Cir. 2018) (the IDEA imposes the Child Find obligation squarely upon school districts, not the parents of disabled children); N.G. v. Dist. of Columbia, 556 F. Supp. 2d 11 (D.D.C. 2008) (this is an affirmative obligation of the district); C.C. Jr. v. Beaumont Indep. Sch. Dist., 2015 U.S. Dist. LEXIS 192513 (E.D. Tex. 2015) (parent does not have duty; school has affirmative duty to identify, locate and evaluate); Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 320 (5th Cir. 2017). Toledo City Schs., 66 IDELR 174 (SEA OH 2015) (even a parent’s failure to ask for IDEA services does not excuse a district’s failure to evaluate the student). 

In Spring Branch ISD v. O.W., 938 F.3d 695 (5th Cir. 2019), opinion withdrawn and superseded on reh'g by SBISD v. O.W., 961 F.3d 781 (5th Cir. 2020) (awarding tuition and  compensatory education for private school setting), the Court explained that a Child Find violation turns on three inquiries: (1) the date the child find requirement was triggered due to notice of a likely disability; (2) the date the child find duty was ultimately satisfied; and (3) the reasonableness of the delay between these two dates.

Knowledge may be inferred from child’s behavior/performance, teacher concern, parental concern or evaluation request. 20 U.S.C. 1415(k)(8)(B)(i-iv). Educational performance is not limited to academics, but also encompasses behavioral and social skills progress. Venus Indep. Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 624 (N.D. Tex. 2002). “Behavioral modifications, for instance, immediately come to mind as an example of an IEP strategy that may remediate a disability while also being necessary to confer educational benefits.” Klein Indep. Sch. Dist. v. Hovem, 690 F. 3d 390 (5th Cir. 2012.)

The Department of Education recognized that “it makes a great deal of sense to attend to behavior of children with disabilities that is interfering with their education or that of others, so that behavior can be addressed, even when that behavior will not result in a change in placement.” 71 Fed. Reg. 46721 (August 14, 2006). Thus, in developing an IEP for a student whose behavior impedes his or her learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address the behavior. 34 C.F.R. § 300.324(a)(2)(i).

In Student v. Houston ISD, 107 LRP 32229, 183-SE-0406 (Dec. 6, 2006), the hearing officer found that under §300.304(c)(4), an evaluation must assess the child in all areas of suspected disability. In Student v. Dallas ISD (084-SE-1104) at 106 LRP 6636, the SEHO found that the Child Find duty places the responsibility squarely on districts to find, identify, and serve students in need of special education.

See also Lisa M. v. Leander Ind. Sch. Dist., 924 F.3d 205 (5th Cir. 2019); Lessard v. Wilton-Lyndeborough Cooperative Sch. Dist., 518 F. 3d 18 (1st Cir. 2008); Shore Regional H.S. Bd. Of Ed. v. P.S., 381 F.3d 194 (3d Cir. 2004); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988); Regional Sch. Dist. No. 9 v. Mr. and Mrs. ex rel. M.M., 2009 U.S. Dist. LEXIS 71032 (D. Conn. 2009)(district failed to evaluate child when it received notice that she had been placed in psych. hospital; IDEA’s child find provisions are triggered when district has reason to suspect that child has disability, not factual knowledge of eligibility).

A 6-month delay to evaluate after a district should have suspected a disability is unreasonable. Krawietz by Parker v. Galveston Indep. Sch. Dist., 118 LRP 33959 (5th Cir. 2018) A district violates Child Find by referring a student for “interventions,” rather than evaluating his needs.  El Paso Ind. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 50 IDELR 256 (W.D. Tex. 2008). Even if a student is making good grades and educational gains, if the student continues to struggle despite intervention, a district should suspect a disability.  The IDEA does not require “magic words” to request a special education evaluation or services. Hardin-Jefferson Indep. Sch. Dist., 66 IDELR 147 (TX SEA July 31, 2015). Pre-referral interventions do not excuse the violations. DA v. Houston Indep. Sch. Dist., 716 F.Supp 2d 603, 615 (SD Tex 2009).

The 5th Circuit has held that even accommodations, which are helpful but do not arise to the level of modifications to the general education curriculum, are no substitute for an evaluation once a district is on notice of facts under which staff should suspect a disability. Spring Branch v. OW II at 794.


The eligibility areas that commonly trigger private placements are Emotional Disturbance, Autism Spectrum Disorder, Specific Learning Disability and Other Health Impairment. They are defined in the law:

In the IDEA, Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(ii) Emotional disturbance includes schizophrenia.

The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c) (4)(i) of this section

In the IDEA, Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory- experiences.

(ii) Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.

(iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(l)(i) of this section are satisfied.

In the IDEA, Specific Learning Disability “means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

A child can have a specific learning disability when the child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards:

(i) Oral expression.

(ii) Listening comprehension.

(iii) Written expression.

(iv) Basic reading skill.

(v) Reading fluency skills.

(vi) Reading comprehension.

(vii) Mathematics calculation.

(viii) Mathematics problem solving.

In the IDEA, Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that- (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and (ii) Adversely affects a child's educational performance.


The Supreme Court has twice explicitly rejected the view that every handicapped child who is advancing from grade to grade is automatically receiving a free appropriate public education. Endrew F. v. Douglas Cty, 137 S. Ct. 988, 1000, n. 2 (2017); Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982), n. 25 at 203. The Supreme Court established a two-part test for determining whether a school district provided a FAPE to a student under IDEA: 1) did the school district comply with IDEA’s procedures; and, 2) was the IEP reasonably calculated to confer educational benefit to the student.

For example, a delay in conducting a Functional Behavioral Assessment (FBA) impedes parents’ participation in the IEP process. E.S. v. Conejo Valley Unified Sch. Dist., 118 LRP 31548 (C.D. Cal. 07/27/18). The court found that Parents can't participate effectively in IEP team discussions unless they have a clear picture of their child's strengths and deficits. When a district fails to evaluate a student in one or more areas of need, it deprives the parents of the information needed to determine whether the proposed IEP is appropriate. In that case, the district did not seek consent for an FBA until after the IEP team had developed the child's program. Because they lacked information about the precursors to the child's aggression, the parents could not offer meaningful input on the district's offer of services. How much more severe is it when the district has done no evaluation in any subject area at all?

An eligibility team also should consider factors such as the student's attendance record, her ability to earn required credits, and any changes in her grades. The district in M.M. and I.F. v. New York City Department of Education, 63 IDELR 156 (S.D.N.Y. 2014), provided the student with two months of home instruction when she became too fearful to attend school. The student's prolonged absence, coupled with her failure to earn enough credits to move on to the next grade, should have prompted the district to find her eligible for special education. Here, the student’s grades were plummeting, her attendance was so poor that her family was receiving threatening letters from the principal, and she failed to earn even one credit for the fall of 2019 at her local high school.

In Department of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F. Supp. 2d 1190, the Department of Education of the State of Hawaii ("the State") the SEHO found that the State violated the "child find" provisions of the IDEA by failing to evaluate the Student for a suspected disability earlier than it did. The SEHO awarded costs ($6,134 plus accrued interest, totaling $7,713) to the Student that were incurred for treatment, diagnosis and evaluation at Queen's Medical Center during a hospitalization. The State also contested the award of costs incurred during the Queen's hospitalization as not "related services" as defined by IDEA and its implementing regulations.

The court found in favor of the family on the issue regarding the definition of "related services" in the context of a violation of the "child find" provisions of the IDEA and found the costs were related services and the State was responsible for payment. In N.G. v. District of Columbia, 556 F. Supp. 2d 11, 27 (D.D.C. 2008), the court agreed that the District violated the "Child Find" provision of the IDEA by failing in 2003 to recognize N.G.'s "potentially disabling conditions, and again in 2005, when it failed either to gather relevant information or to properly interpret the information it had."  The court ordered reimbursement for three years of private placement.


The case law makes clear that school refusal is one of the common signs that trigger suspicion of the presence of a disability and a duty to evaluate. Case law makes clear that districts must attend to school refusal and truancy, as it relates both to child find for students without an IEP and as to FAPE for students who do have an IEP.

If absences result from anxiety, a student may require a placement in a therapeutic setting. Board of Educ. of Montgomery County, Md. v. S.G. by N.G., 47 IDELR 285 (4th Cir. 2007, unpublished).

In M.M. and I.F. ex rel. L.F. v. New York City Dep't of Educ.,63 IDELR 156(S.D.N.Y. 2014), a high schooler's anxiety and depression adversely affected her education by preventing her from attending school,  and the U.S. District Court, Southern District of New York held that the district erred in finding her ineligible for IDEA services. Finding that the student's residential placement addressed her educational needs, the court ordered the district to reimburse the parents for their tuition costs.

Similarly, inLeggett v. District of Columbia,65 IDELR 251(D.C. Cir. 2015), the District of Columbia  had to reimburse the parent of a high schooler with SLDs, anxiety, and depression for expenses she incurred when she placed her daughter in an out-of-state boarding school. Holding that the district's failure to develop an IEP made the residential placement "necessary," the U.S. Court of Appeals, D.C. Circuit reversed a decision in the district's favor and remanded the case for further proceedings.

Additional cases holding that a child's disability-caused truancy required a residential therapeutic school placement include Lexington County Sc. Dist. One v Frazier ex rel. D.T., 2011 WL 4435690, 57 IDELR 190 (D.S.C. 2011), in which a high school student with Asperger Syndrome, whose anxiety and frustration frequently resulted in his refusing to attend school, and when there, refusing to participate, the district had to reimburse parents for a unilateral residential placement, because the student’s disability made it impossible for him to access his education in the public school.

See also Independent School District No. 284 v A.C., 258 F. 3d 769 (8th Circuit 2001).  Residential treatment for a child was warranted because the child suffered from emotional and behavioral disorders that manifested themselves in “classroom disruption, profanity, insubordination and truancy.”  258 F. 3d at 771.  (The child was often a runaway.)  Evaluations suggested that these disorders were interfering with her academic progress, and that she needed a highly structured program in order to benefit from educational instruction. Because the child’s emotional and behavioral disorders “need[ed] to be addressed in order for [her] to learn, and because evaluations suggested that a residential program would be the only effective way of treating these problems, residential placement was appropriate.  IDEA is applicable when child’s disability impairs child's ability to receive educational benefit even if the problem is not itself educational or cognitive, or causes child more trouble outside classroom.  The child's truancy is one facet of disability, not a moral failing, and supports the need for residential treatment.

See also Taylor v. Honig, 910 F. 2d 627 (9th Cir. 1990) (residential treatment to forestall truancy)

In Hilliard City Sch. Dist.,112 LRP 53622(SEA OH 10/02/12), an Ohio district violated the IDEA when it failed to evaluate a student with anxiety issues who was frequently absent from school. Reasoning that school officials had sufficient reason to suspect the student was a child with a disability in need of services, the Ohio ED concluded that the district violated child find. If absenteeism is accompanied by plummeting grades and information connecting the absenteeism to a disability, the district risks violating the child find provision if it does not refer the student.

In Lexington County School District One v. Frazier ex rel. D.T., 57 IDELR 190 (D.S.C. 2011) a school district did not offer counseling in the student’s IEP or question the appropriateness of his placement even though a high school student with Asperger syndrome and anxiety frequently refused to attend school. When he did attend, he become frustrated and declined to participate. The court ordered the district to reimburse the mother for the cost of a therapeutic residential program where she placed her son. The court found one of the primary reasons for the private placement was to find a setting where the student would respond to education.

In District of Columbia Public Schools, 116 LRP 7639(SEA DC 12/22/15), when a student with ED began to experience psychotic episodes, severe anxiety, depression, paranoia, and excessive absenteeism, the district denied the student FAPE by failing to adequately revise her IEP. The decision said districts must take action when they receive information that a student with an IEP has anxiety, depression, or other mental health challenges that cause her to miss school or class on a frequent basis. To facilitate the student's attendance and receipt of FAPE, districts may need to provide the student with new or different services, or a different educational setting. The IHO in this case noted that the student needed services and a reasonable plan to address her attendance issues, including the anxiety-related "flight response" that, according to her doctor, made it difficult for her to remain in class. Instead, the district continued to assign her to a large public high school and provided her with just 15 minutes of additional behavioral support per week.

Residential placement was ordered for a teenager who could not get out of bed in the mornings despite good scores on standardized tests and good grades when he did attend school. Dale M. v. Bd of Educ. of Bradlev-Bourbonnais High Sch. Dist.. 28 IDELR 711 (C.D. III. 1998)

OCR found in Anacortes (WA) Sch.  Dist. No. 103, 53 IDELR 241 (OCR 2009) that a student’s IEP should have addressed absenteeism and a plan for absences connected to student’s disability.


The courts have been clear that academics are not the end all be all for students with ED and OHI. L.I. v. Maine School Admin. Dist. No. 55, 47 IDELR 121 (1st Cir., 2007), which offers extensive analysis of why a bright student with Emotional Disturbance and good grades is eligible for special education and related services. The court noted that the requirement of “adversely affects educational performance” in the federal regulations includes any adverse effect, even if slight. Id. at 12-13. (emphasis added). See also Board of Educ. Of Montgomery County v. S.G., 2006 WL 544529 (4th Cir., 2007); Corchado v. Board of Educ. Rochester City School Dist., 86 F.Supp.2d 168 (2000); Hansen v. Republic R-III Sch. Dist., No. 10-1514, (8th Cir., 2011.)

In Williamson County Board Of Education v. C.K., 52 IDELR 40 (2009), a federal district court recognized that a gifted student with ADHD who earned passing marks and progressed from grade to grade was eligible for IDEA services. The court affirmed a due process decision that ordered a Tennessee district to develop an IEP and provide one year's worth of compensatory education.

In Collegium Charter Sch.,113 LRP 39291(SEA PA 08/16/13), a hearing officer found that a student's ongoing struggles with staying on task and reaping educational benefit from his classes contradicted a Pennsylvania charter school's finding that the student was ineligible for special education and related services. An impartial hearing officer rejected the school's argument that the student didn't need specialized instruction. The court found that a student with ADHD is eligible under the IDEA if the condition substantially limits the student's alertness with respect to the educational environment and, as a result, adversely affects academic performance. A regular behavior in class that impedes a student's learning may signal that the required adverse effect exists. In that case, the student regularly engaged in off-task, inattentive, and impulsive behavior. He was constantly out of his seat, and was highly disorganized. The student's behavior and resulting academic struggles showed that the student should have been found eligible for special education and related services. An impartial hearing officer concluded that the school's eligibility decision was incorrect and he needed specialized instruction.

A Minnesota district violated the IDEA not only by waiting two years to evaluate an academically gifted high schooler who frequently missed school due to her anxiety, but also by finding the student ineligible for special education based on her academic performance. E.M.D.H., 960 F. 3d 1073 (8th Cir. 2020) The 8th Circuit upheld the District Court's ruling that the district violated the IDEA by delaying its initial evaluation of the student, failing to conduct an appropriate evaluation, and finding the student ineligible based on her academic ability.

The court found that the fact that a student earned higher-than-average grades will not in itself make her ineligible for IDEA services. In the E.M.D.H. case, the student, just like C.B. had mental health concerns but had above-average intelligence. She missed significant time at school due to those issues and was receiving treatment at a psychiatric facility. The district did not refer her for special education evaluation because she was of above-average intelligence. The Eighth Circuit held the school had violated the IDEA. It explained that the district breached its Child Find obligation. A child’s eligibility for special education cannot be foreclosed by her intellect.

The 8th circuit noted: “Despite this evidence, the District maintains that the Student is simply too intellectually gifted to qualify for special education. The District suggests the Student's high standardized test scores and her exceptional performance on the rare occasions she made it to class are strong indicators that there are no services it can provide that would improve her educational situation. The District confuses intellect for an education. See Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter510 U.S. 7, 13 (1993) ("IDEA was intended to ensure that children with disabilities receive an education that is both appropriate and free."). The IDEA guarantees disabled students access to the latter, no matter their innate intelligence. More practically, the positive results of the private tutoring and online learning indicate that the nearly three years where the Student foundered were not inevitable but the direct result of insufficient individualized attention under an appropriate IEP. The record demonstrates that the Student's intellect alone was insufficient for her to progress academically and that she was in need of special education and related services. Independent Sch. Dist. No. 283 v. E.M.D.H., 120 LRP 17110 (8th Cir. 06/03/20).

In District of Columbia Pub. Schs., 49 IDELR 82 (SEA DC 2007), an impartial hearing officer ordered the District of Columbia to reimburse the parents of a gifted child with ADHD and LD for their child's private day school tuition because it failed to evaluate the student for special needs.

In order to be eligible for services under Part B, a child must be evaluated as having one or more of thirteen specified physical, mental, emotional or sensory impairments, which cause the child to need special education and related services. 20 U.S.C. § 1401(a)(1). The common denominator in this definition is that the child’s impairment “adversely affects educational performance.” 34 CFR §§ 300.7(b)(1)-(b)(13). Part B does not otherwise define this concept. The term “adversely affects” is used in the Part B regulations at 34 CFR § 300.7 in the phrase “adversely affects a child’s educational performance.”

An operational definition of “educational performance” is included in an OSEP letter to William M. Lybarger, Ed.D, dated Sept. 14, 1990. That letter states that a child’s educational performance must be determined on an individual basis and should include non-academic and academic skills. Since the measurement of “educational performance” is different for each child, the Department has not developed a single definition for this term. Similarly, the term “adversely affects” must be determined on an individual basis.

See Mary P.v. ISBE, (U.S. Dist Ct, N.D. Ill. 1996): In that case, the Court noted that the simple fact that a student is advancing from grade to grade is not per se evidence of an appropriate education. It did not hold that the student was ineligible for services because she was achieving academically; rather, the Court simply deferred to the substantially factual determination made by the school in light of the student's academic progress with the assistance she was already receiving.

The much-touted Rowley case said, “We do NOT hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a ‘free appropriate public education.’ ” Furthermore, Rowley’s “some benefit” standard deals with “how much” services are enough for a child who has already been deemed eligible for special education and not does not have to do with eligibility, as in this case. Board of Education of Hendrick Hudson Central Schools District v. Rowley, 458 U.S. 176 (1982).

Also see Westchester Area Sch. Dist. V. Bruce C., 2002 U.S. Dist LEXIS 5880 at 1-2 (W.D. Penn. 2002) holding that grades are not a litmus test for eligibility with a child with a 130 IQ but inconsistent grades and who can’t maintain academic achievement without extensive help from his mother are factors.

See also Ridgewood Bd. Of Educ v. N.E. 172, F3d 238, 247 (3rd Cir. 1999) citing Rowley for the proposition that “children of different abilities are capable of greatly different achievements (and adopting) an approach that requires a court to consider the potential of the particular child before it.” The court also said “when students display considerable intellectual potential, IDEA requires a great deal more than a negligible benefit.” 

A year thereafter, the U.S. District Court for the Southern District of Indiana applied Ridgewood in Nein v. Greater Clark County School Corporation, 95 F. Supp. 2d 961 (S.D. Ind. 2000). The Court focused on the language of IDEA and the statements made by Congress that an IEP should meet a child’s unique needs and that services must be personalized. Nein looked at a student’s IEP in terms of the child’s capacity to learn. Clearly, if a student’s high cognitive ability and “capacity to learn” must be provided for in the IEP, the school system has a better defined responsibility to address the individualized needs of twice exceptional students.

The express purpose of federal education law is “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).

In determining what amount of progress one should expect, the Court in Endrew F v. Douglas RE-1, 137. S. 988 197 L.Ed. 2d 335 (2017) repeatedly stressed the needs of the actual child, instructing that the IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” and that the “educational program must be appropriately ambitious in light of his circumstances. Id. at 999-1000 (emphasis added). This is key. That progress must be measured consistent with “the child’s circumstances” is similar to the language in Rowley, but that goals must also be “appropriately ambitious” is new. And, the Court also explained that “[a]n IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability and potential for growth.” Id. at 999.


The student’s home district must evaluate a student's IDEA eligibility upon a parent's request. See Letter to Eig (OSEP 1/28/2009)(noting that IDEA requires districts to ensure that all resident children with disabilities, including children who attend private schools, are identified, located, and evaluated). Thus, if parents request an evaluation from their district of residence, the district of residence may not refuse to conduct the evaluation and determine the child's eligibility for FAPE just because the child attends a private school in another school district. Upland Unified Sch. Dist., 112 LRP 57989 (SEA CA 11/01/12), citing Letter to Eig, supra.

Case law is clear that child find and the duty to offer a FAPE depend on residency, not enrollment. C.C. Jr. v. Beaumont Indep. Sch. Dist., 65 IDELR 109 (E.D. Tex. 2015) A student eligible to enroll must be offered an appropriate education even if the student is not currently enrolled. Forest Grove v T.A., 557 US 230 (2009)

Specifically, 300.323 states that “When IEPs must be in effect. (a) General. At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in §300.320.”

Further, a student's special education rights do not evaporate based upon a school district's belief a parent has no intention of returning to the district or has predetermined Student will remain privately placed. An offer of placement must be made to a unilaterally placed student even if the district strongly believes that the student is not coming back to the district, or parents have indicated that they will not be pursuing services from the district. The IDEA does not make a district's duties contingent on parental cooperation with, or acquiescence in the district's preferred course of action. (Anchorage School Dist. v. M.P. (9th Cir. 2012) 689 F.3d 1047, 1055.) Re-enrollment in the public school is not required to receive an IEP because it is residency, rather than enrollment, that triggers a district's IDEA obligations.

A school district's obligation to provide special education and related services do not expire; and terminate only upon one of three conditions; (1) the student ages out on his/her 22nd birthday; (2) the student graduates with a regular high school diploma; or (3) the student's parents revoke consent to the provision of special education and related services in writing. (34 C.F.R. § 300.101(a); 34 C.F.R. § 300.102 (a)(3)(i); 34. C.F.R. § 300.300(b)(4)(iii). 

Finally, even if a student has already been placed in an RTC by the parents or by the state, the student has the right to be considered enrolled in her school of origin, which is the school district where the parent and child lived, under the McKinney-Vento Act, 42 U.S.C. § 11431 et seq. It applies to children and youth age 21 and under, consistent with their eligibility for public education services under state and federal law. State laws vary, but generally provide access to all students until high school graduation or equivalent, or until age 18 (or over in some states). The goal of the McKinney-Vento Homeless Education Assistance Act is to ensure that each homeless child or youth has equal access to the same free, appropriate public education, including a public preschool education, as provided to other children and youths. The student meets one or more of the definitions found in the Act. In relevant part: “(3) Local educational agency requirements. (A) In general. The local educational agency serving each child or youth to be assisted under this part shall, according to the child’s or youth’s best interest-- (i) continue the child’s or youth’s education in the school of origin for the duration of homelessness-- (I) in any case in which a family becomes homeless between academic years or during an academic year; or (II) for the remainder of the academic year, if the child or youth becomes permanently housed during an academic year; or (ii) enroll the child or youth in any public school that non-homeless students who live in the attendance area in which the child or youth is actually living are eligible to attend. (B) Best interest. In determining the best interest of the child or youth under subparagraph (A), the local educational agency shall-- (i) to the extent feasible, keep a homeless child or youth in the school of origin, except when doing so is contrary to the wishes of the child’s or youth’s parent or guardian; (ii) provide a written explanation, including a statement regarding the right to appeal under subparagraph (E), to the homeless child’s or youth’s parent or guardian, if the local educational agency sends such child or youth to a school other than the school of origin or a school requested by the parent or guardian; and (iii) in the case of an unaccompanied youth, ensure that the homeless liaison designated under paragraph (1)(J)(ii) assists in placement or enrollment decisions under this subparagraph, considers the views of such unaccompanied youth, and provides notice to such youth of the right to appeal under subparagraph (E).” (See enclosed website summary of the Act.)

Districts are responsible to comply with all IDEA procedures; the failure to comply with procedures can be a per se violation of the IDEA. Jackson v. Franklin County School Board, 806 F. 2d 623 (5th Cir. 1986) (finding serious procedural violation when no conference held to determine a child’s next placement); Buser by Buser v. Corpus Christi Independent School, 51 F. 3d 490 (5th Cir. 1995) (citing Jackson with approval but finding district in that case complied with procedures).


The Supreme Court has made clear that hearing officers and courts may award reimbursement to parents who purchase educational services for their children who have been denied an appropriate education by the public schools, Florence County Sch. Dist. Four v. Carter, 10 U.S. 7 (1993).

In order to receive reimbursement for the unilateral private placement of a child with a disability, the parent must prove (1) the public school’s IEP is not appropriate under IDEA; and (ii) the private placement was appropriate. Sch. Comm. Of Burlington v. Dept. of Educ. Of Mass, 471 U.S. 359, 370 (1985); Richardson Ind. Sch. Dist. V. Michael Z., 580 F.3d 286, 293 (5th Cir. 2009). Although the private placement need not meet all state education standards for public schools, it must nonetheless be appropriate in light of the student’s needs. Florence County School District Four v. Shannon Carter bnf Emory Carter, 510 U.S. 7, 13 (1993).

In Michael Z., the Fifth Circuit set forth the following test: "In order for a residential placement to be appropriate under IDEA, the placement must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education." Michael Z., 580 F.3d at 299. 

Residential placement and/or reimbursements cases include several in Texas and other states. In Little Cypress Mauriceville Consol. Indep. Sch. Dist.,113 LRP 16321(SEA TX 03/25/13), a Texas parent established that a residential facility was both necessary and appropriate for a student with autism, SLDs, and a history of aggressive behavior. Concluding that the residential program the parent selected was primarily geared toward education and that student could not improve without round-the-clock support, the IHO ordered the district to place the student there. Because the facility the parent requested offered intensive social skills instruction and other related services, it was primarily oriented toward education.

Other Texas SEHO decisions ordering RTCs include: Student v. Beaumont ISD, TEA Docket # 300-SE-0707; Student v. Beaumont ISD, TEA Docket # 301-SE-0707; Student v. Victoria ISD, TEA Docket 286-SE-0809; Student v. Port Arthur ISD, TEA Docket # 195-SE-0417; Student v. Dallas ISD, TEA Docket # 284-SE-0817; Student v. Leander ISD, TEA Docket # 035-SE-1017.

If a student has ever been hospitalized for emotional or mental health reasons, whether on an inpatient or outpatient basis, there is a greater likelihood that the student will need a therapeutic placement to receive an educational benefit. At the very least, the student's hospitalization should prompt the IEP team to consider whether a therapeutic placement is necessary. North Penn Sch. Dist., 50 IDELR 118 (SEA PA 2008). Neither the IDEA nor the Part B regulations define "therapeutic placement." However, the ordinary meaning of the word "therapeutic" refers to healing, curative, or restorative properties. Decisions that address the term in the special education context indicate that therapeutic placements typically consist of small, structured classes with emotional and behavioral supports. See, for example, Boston Public Schools, 50 IDELR 55 (SEA MA 2008); Wood Dale School District No. 7, 51 IDELR 260 (SEA IL 2008); and Braintree Public Schools, 5 ECLPR 119 (SEA MA 2008). 

The Texas Education Agency (TEA) even maintains a list of Non-Public in-state residential placements that it approves for Texas students, so it is clear that placements such as these are endorsed as appropriate for students. This list changes periodically and can be found on the TEA website.

Residential placement decisions in other states include: 

  1. In Jefferson County Sch. Dist. R-1 v. Elizabeth E. by Roxanne B. and David E.,113 LRP 43(10th Cir. 12/28/12), using the plain language of the IDEA as a guide, the 10th Circuit held that the parents of a teenager with an emotional disturbance could recover the cost of their daughter's out-of-state residential placement from a Colorado district. The court affirmed a decision at57 IDELR 13that the placement met the student's needs. The 10th Circuit recognized that Circuit Courts apply two distinct standards in determining whether a residential placement is reimbursable. While the 1st, 2d, 3d, 4th, 6th, 8th, 9th, 11th, and D.C. Circuit Courts of Appeal use the "educationally necessary" test, which focuses on the segregability of the student's academic, medical, and emotional needs, the 5th and 7th U.S. Circuit Courts of Appeal consider whether the services provided in the residential program are "primarily oriented" toward allowing the student to receive an education. After thoroughly reviewing each test, the 10th Circuit settled on a third option. "In this case, ... it is unnecessary to endorse either approach because [the student's] placement at [the residential facility] is reimbursable under a straightforward application of the statutory text," U.S. Circuit Judge Michael R. Murphy wrote for the two-judge majority. The court observed that the parents could recover the cost of the student's placement if: 1) the district denied the student FAPE; 2) the residential facility was a state-accredited elementary or secondary school; 3) the facility provided specially designed instruction to meet the student's unique needs; and 4) any non-academic services the student received met the IDEA's definition of "related services."
  2. In Edmonds Sch. Dist. v. A.T.,74 IDELR 218 (9th Cir. 2019, unpublished), a Washington district had to reimburse the parents of a high schooler with ADHD, oppositional defiant disorder, and schizophrenia for the cost of their son's placement in a therapeutic residential program. The 9th Circuit upheld a District Court ruling at 71 IDELR 31 that the placement was educationally necessary and based on the student's educational needs. The daily group therapy sessions and other mental health supports the student received at the residential school were necessary to address his truancy and make him available for learning. The court held that mental health services, which he needed in order to receive a FAPE, didn’t turn the residential school into a medical placement.
  3. In Eschenasy v. New York City Department of Education,52 IDELR 66(S.D.N.Y. 2009), a student was ordered to receive an RTC. She cut classes, took drugs, stole, pulled out her hair, cut herself and attempted suicide.


In Letter to Cousineau and Halbett, 36 IDELR 158, N/A, 102 LRP 9041 (2001) OCR stated: “In situations where a student’s educational needs are inseparable from the child’s emotional needs and the student is determined on an individualized basis to require the therapeutic and habilitation services of a residential program in order to “benefit from special education’, the services may be ‘related services’ under the IDEA.” The letter goes on: “In such case, the SEA is responsible for ensuring the entire cost of that placement, including the therapeutic care as well as room and board, is without costs to the parents.”

Reimbursable costs of a residential placement include transportation. The Office of Special Education Programs stated in Letter to Mannon, 211 IDELR 218 (OSEP 1980), that if a parent transports a student with a disability to a residential facility, then the district should reimburse the parent for reasonable transportation expenses such as plane fare, car rentals, meals, and lodging.

Further, the regulations and Act provide for such costs. See 34 CFR 300.104 – As to residential placements-- “THE PROGRAM INCLUDING THE NONMEDICAL CARE AND ROOM AND BOARD, MUST BE AT NO COST TO THEPARENTS OF THE CHILD.”  A definition of medical services is found in Cedar Rapids Community School Dist. v. Garret F., 526 U.S. 66 (1999) for those services which can only be provided by a doctor. 


The IDEA authorizes reimbursement to parents for the full cost of a private placement when a public school fails to provide a FAPE and the parent provides an appropriate private education. See Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2488 (2009); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993); School Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369-70 (1985). Whether the parental placement is proper and thus eligible for reimbursement depends not on whether it meets state educational standards or would qualify as a FAPE if offered by a public school, Carter, 510 U.S. at 13-14, but whether it is reasonably calculated to enable the child to receive educational benefits. See id. at 11. As discussed above, a parental placement can meet this standard when it provides many, but not all, of the special education services that the child needs.

The Dallas Court of Appeals held that a therapeutic boarding school is by definition not a health care provider under Texas law. Thus, under Texas law, a therapeutic boarding school is by law and by definition not a health care provider. Boulder Creek Academy v. Kline, 392 S.W. 3d 752. (Dallas Ct. App., 2012.)

Public schools should consider private school options in IEP team meetings. Burlington Sch. Committee v. Dept. of Ed., 471 U.S. 359 (1983) (the Act provides for placement in private schools). When, as here, the parent gives private school notice, the public school program was inappropriate and the private school program is appropriate, the SEHO can order reimbursement. Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781 (5th Cir. 2020). A private school does not have to meet the same requirements for FAPE as a private school. Florence County School District Four v. Shannon Carter, 510 U.S. 7 (1993). A private school does not have to meet the public school LRE requirement. C.B. v. Special School Dist. No. 1, 636 F.3d 981 (8th Cir. 2011); Warren G. v. Cumberland Cnty. Sch. Dist., 190 F. 3d 80, 83-84 (3d Cir. 1999); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F. 3d 391, 399-400 (6th Cir. 1998); Melanie B. v. Georgetown Indep. Sch. Dist., 2018 U.S. 72977, *13-15 (W.D. Tx. 2018) (finding private placement of 1:1 instruction was appropriate). Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781 (5th Cir. 2020) (approving private school tuition and placement). A unilateral placement is not required to be the “exact proper placement required under the Act.” Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153 1161 (5th Cir. 1986) (quoted with approval in Melanie B., supra at *15).


There exist professional journal articles explaining the efficacy and research-validated wilderness therapy modality. (For example, see Slagle, T, & Freedle, L. R. (2018). Application of the Neurosequential Model of Therapeutics® (NMT) in an Integrative Outdoor Behavioral Healthcare Program for Adolescents and Young Adults. In Proceedings of the Second International Neurosequential Model Symposium, Lennox, SD: CF Learning Press).

The article said: The teen brain undergoes substantial developmental changes in stressor-sensitive brain regions when the prefrontal cortex is not yet fully developed (Romeo, 2013; Spear, 2000). Hence, adolescents tend to be emotionally-driven with highly reactive stress response systems. Although most young people successfully navigate this stormy phase of development, those who enter adolescence with challenges such as anxiety, depression or trauma as well as those who experience certain stressors may be particularly vulnerable to acquiring serious and longstanding mental health problems and addictions (Grant et al., 2006; Romeo, 2013). One in four adolescents experience mental disorders that result in severe impairment, and half of those will go without mental health services (Lipari, et al., 2016).

The Neurosequential Model of Therapeutics© (NMT) is an evidence-based, developmentally-sensitive approach to clinical problem solving that is informed by the principles of neurodevelopment (Perry, 2006; Perry, 2016). NMT is not a specific therapeutic technique, but rather a lens that helps to identify individual strengths and vulnerabilities and to select and sequence appropriate activities and interventions (Perry, 2016). Although NMT emerged to meet the complex needs of maltreated and traumatized children (Perry, 2009), NMT is applicable to a variety of therapeutic settings across the full life cycle (Perry, 2016).

Outdoor behavioral healthcare (OBH) describes a range of specialized therapeutic programs for youth where group living, immersion in nature, and various clinical, experiential and psychoeducational interventions are used to interrupt and assess maladaptive behavior and to promote emotional growth and personal and social responsibility (Russell & Hendee, 2000; Russell, 2001). OBH is found to be effective with adolescents and young adults with an array of severe emotional or behavioral problems and a history of trauma and/or substance abuse (Bowen & Neil, 2013; Roberts, Stroud, Hoag, & Combs, 2016; Russell, Gillis, & Lewis, 2008). 

The article said: -- OBH has been synonymous with wilderness and adventure therapy. However, other forms of nature-assisted therapy such as equine and horticultural therapy have emerged as alternatives to traditional hiking and survival-based programs.

For twice-exceptional students who are bright and promising and have the potential to be productive citizens if they receive a FAPE, under the law, her program should be expected to match that potential. Specifically, overlaying the IDEA mandate is the codified mission of the Texas public education system: “[T]o ensure that all Texas children have access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and nation.” Tex. Educ. Code Ann. § 4.001(a) (West) (emphasis added). Thus, this is the standard to be applied in Texas. Other states may have similar statements of expectations.

The 5th circuit has stated “the primary goal in crafting an IEP is to maximize the student’s potential to achieve his educational objectives.” J.H. v. Fort Bend Indep. Sch. Dist., 482 Fed. Appx. 915, 921 (5th Cir. 2012)

Accordingly, Texas has taken on a responsibility greater than that dictated by IDEA. (See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007) (“education must … meet the standards of the State educational agency”); Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (state may “calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”). 

Getting by or merely passing is OK for a student who is capable only of squeaking by in school and in life. However, case law is clear that more is expected for a bright, capable and talented student.


The 5th Circuit has held that even accommodations, which are helpful but do not rise to the level of modifications to the general education curriculum are no substitute for an evaluation once a school district is on notice of facts under which staff should suspect a disability. Specifically, in Spring Branch Indep. Sch. Dist. v. O.W., 938 F. 3d 695 (5th Cir. 2019) (O.W. I), withdrawn and superseded on reh’g by Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781, 790 (5th Cir. 2020 (O.W. II), the Fifth Circuit affirmed that SBISD violated its Child Find duty: “In light of the acts and behaviors observed by the School District in this case, its failure to pursue evaluation, even while concurrently implementing intermediate accommodations, can be described as nothing less than a delay or denial.” O.W. II, at 793. And the Fifth Circuit noted that, “Based on the severity of O.W.’s behavior, it was not reasonable to try intermediate measures to determine whether special education testing was appropriate for O.W.…We agree with the hearing officer that by October 8, 2014, the School District should have known that general behavior interventions were not working…and the continued use of behavioral interventions was not a proactive step toward compliance with the School District’s child find duties and that, therefore, a child find violation occurred.” O.W. II, at 794.

Special education is sub-defined as specially designed instruction, adapting the content, methodology or delivery of instruction – to ensure access of the child to the general curriculum, so that he or she can meet the educational standards that apply to all children. 34 CFR 300.26. The purpose is to ensure that “all children with disabilities have available to them a [FAPE]...designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §1400(d)(1). Essentially, “the purpose of the IEP is to tailor the education to the child; not tailor the child to the education.”  S. REP. NO. 105-17, at 24 (1997).

For students with emotional or behavioral disorders, instruction may require a functional behavioral assessment (FBA) and positive behavioral intervention and support (PBIS

Although it is legally better to give 10 business days’ notice to the school district in advance of a private placement by a parent, a formal 10-day notice of private placement by parents is not required where parents were not advised of their rights and obligations due to a district’s failure to supply a copy of the Notice of Procedural Safeguards or Prior Written Notice and/or when there is no IEP on the table to reject. (See R.B and H.Z. v. New York City Dept. of Educ., 713 F. Supp.2d 235, (S.D. N.Y. 2010) and N.G. et al v. District of Columbia, 556 F. Supp. 2d 11 (D.C. 2008)).


The IDEA recites when prior written notice is required in 34 C.F.R.§ 300.503(a) and (b). The explicit requirement of “prior written notice” is no mere technicality.  It serves several purposes, including “alert[ing] the parents to serious consideration of the proposed placement and provides them with an opportunity to accept or reject the offer.” Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). 

The right to Prior Written Notice is stated at § 300.534: “A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part.” This part encompasses Prior Written Notice at 300.503. 

Receiving a first copy of the Notice of Procedural Safeguards after filing a hearing request is not timely under 34 C.F.R. 300.504. This delay results in a denial of receipt of FAPE under 34 C.F.R .300.513 and Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811-13 (5th Cir. 2003.) Districts are responsible to comply with all procedures of the IDEA; the failure to comply with procedures can be a per se violation of the IDEA. Jackson v. Franklin County School Board, 806 F. 2d 623 (5th Cir. 1986) (finding serious procedural violation when no conference was held to determine child’s next placement); Buser by Buser v. Corpus Christi Independent School, 51 F. 3d 490 (5th Cir. 1995) (citing Jackson with approval but finding district complied with procedures).

The law is clear that failure to provide NOPS means the typical limitations period that might otherwise have been applied is not applicable. Wehrspann v. Dubuque Cmty. Sch. Dist., 118 LRP 33253 (N.D. Iowa 08/14/18). In that case, a district's failure to notify parents about the IDEA's procedural safeguards allowed parents to pursue a child find claim many years later.

Non-expert testimony by student’s teachers can carry little weight in light of the fact that school employee testimony is inherently self-serving. In P.B. and M.B. obo H.B. v. Washington Twp BOE, EDS 10957-13, pages 74-75 (N.J. 2016), the hearing officer wrote in regard to the testimony of school district employees: “While H.B. teachers, therapists and social workers were of the opinion that H.B. did receive a FAPE, they are not experts and were not qualified as such.  Their opinions can also fairly be assessed through the prism of their circumstances.  Obviously, because they are H.B.’s teachers and employees of the District, they have a direct interest in proving that their work was effective in teaching H.B.  They rightly saw H.B. in a most positive light.  It would be unusual for a teacher to agree that he or she did a poor job of educating a student, or that the school’s program was not working.” 


  1. Eligibility for special education and related services.
  2. An IEP that provides a Free Appropriate Public Education (FAPE)
  3. Day treatment and/or residential treatment center placement at district expense.
  4. Psychological counseling, which is a “related service” that must be provided if “required to assist a child with a disability to benefit from special education.” [ER 1047]. 20 U.S.C. §§1401(9) and (26)(A); Clovis Unified Sch. Dist. v. California Office of Admin., 903 F.2d 635, 643 (9th Cir. 1990); Mark H. v. Lemahieu, 513 F.3d 922, 925-926 and 926 n.1 (9th Cir. 2008). 
  5. Reimbursement for parental costs of RTC placement and associated expenses (such as mandatory fees, travel, lodging, etc.)
  6. Compensatory educational services. Compensatory education awards, which can include tuition reimbursement, are designed to provide services prospectively to compensate for a past deficient program and should put children in the position they would have been but for the violation of the IDEA. Spring Branch Indep. Sch. Dist., 938 F. 3d 695, (5th Cir. 2019). The “IDEA authorizes reimbursement for the cost of private special-education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.” Dallas Indep. Sch. Dist., 865 F.3d 303, (5th Cir. 2017). Compensatory services are an equitable remedy that seeks to make up for “educational services the child should have received in the first place,” and “aim[s] to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA.” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see 20 U.S.C. § 1415(i)(2)(C)(iii).
  7. Any other relief that the parties or a hearing officer deems appropriate or which is recommended by the student’s experts and evaluators. (This “any relief” is consistent with the language in the IDEA, which says when there is a finding of a denial of FAPE, a court “shall grant such relief as the court determines is appropriate.”  20 U.S.C. §1415(i)(2)(C)(iii). Courts have broad discretion in crafting remedies for violations of IDEA.  Florence County Sch. Dist. Four v. Carter510 U.S. 7, 15-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). “The ordinary meaning of these words confers broad discretion on the court.”  Burlington School Comm. v. Massachusetts Dept. of Ed., 471 U.S. 359, 369 (1985).  Thus, that phrase “means that equitable considerations are relevant in fashioning relief.”  Id. at 374. Further, the express language of Rule 54(c) of the Federal Rules of Civil Procedure discusses remedies that aren’t even pleaded.  “Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”  Fed.R.Civ.P. 54(c) (emphasis added.)  The language of IDEA is in line with the concept embodied in Rule 54(c).)