Eighth Circuit Denies IDEA Reimbursement for "Home-Based Program"

Last Friday, the United States Court of Appeals for the Eighth Circuit issued its opinion in T.B. v. St. Joseph School District.  The case was an IDEA reimbursement action with a twist: Rather than enrolling their child in a private school when they were dissatisfied with the individualized education plan the school district offered, the parents here withdrew their child (who has autism) from school and enrolled him in a "home-based program."  The home-based program at issue was provided pursuant to a Medicaid waiver obtained by the Missouri Department of Mental Health.  According to the Eighth Circuit, it provided "personal assistance, day habilitation, transportation, environmental accessibility adaptation, respite care, and behavior therapy."  The school district refused to pay for the program (though I'm not sure why the parents had any out-of-pocket costs if the program was funded through Medicaid).  The parents filed an administrative complaint.  Although the administrative review panel concluded that the district had "violated the IDEA by failing to conduct a triennial re-evaluation of T.B., as required by 20 U.S.C. § 1414(a)(2), and by failing to inform the parents in writing of its intent not to conduct such evaluation," it nonetheless "denied the parents' request for reimbursement on the ground T.B.'s home-based program was 'woefully inadequate' and the parents had failed to prove they actually paid for the costs associated with it."  The parents sought review in the district court, which concluded that the district had not violated the IDEA and that T.B.'s parents had in any event "failed to show what expenses for the home-based program, if any, they had actually incurred."

The Eighth Circuit affirmed the denial of reimbursement.  The court assumed arguendo that the school district had violated the IDEA.  But it concluded that "the parents are still not entitled to reimbursement as they cannot show the home-based program is 'proper' under the IDEA," because it was not reasonably calculated to enable T.B. to receive educational benefits.  The court explained:

Consistent with the services provided through the waiver, the record further shows T.B. engaged in the following types of activities for the duration of his home-based program: daily living, community access, money management, protective oversight, and exercise. See Appellee's App. at 391-417 (providing copies of T.B.'s daily activity log sheets). For example, T.B. worked on answering social questions like "What's your address?", "What's your phone number?", and "What's your name?" He also worked on developing basic social skills by learning how to make eye contact, respond to questions in simple conversations, wait in line at the store, order from a menu, and play games with others. The program further focused on teaching T.B. the proper sequence for certain household and daily activities, such as doing laundry, making popcorn, or brushing his teeth.

To be sure, the record does indicate the program provided some educational services, including math, reading, and listening comprehension. These educational services, however, were often secondary to the teaching of social and behavior skills. Math, for example, was included as part of learning how to wait in line and place an order or as part of the money management lessons. Spelling and vocabulary expansion were done on the way to a social activity. Thus, while the home-based program may have offered some activities to help supplement T.B.'s educational needs, these activities were in no way intended to supplant the educational services available to him through the School District. In fact, the Lopez waiver specifically provides that the services available through the program "may not duplicate or replace special education-related services, which otherwise are available to the child through a state and local agency." Hr'g Tr., Nov. 9, 2009, at 141.

This is an odd fact pattern in a lot of ways.  I'm still having trouble understanding what the out-of-pocket cost to the parents was here.  And nobody could reasonably think that Medicaid waiver services like these are designed to supplant or fully substitute for special education services.  Nonetheless, this case continues the trend (now in a published appellate opinion) of courts carefully examining the alternative placement before granting tuition reimbursement under the IDEA.