     Case: 14-20101      Document: 00512928380         Page: 1    Date Filed: 02/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20101
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 5, 2015
                                                                           Lyle W. Cayce
FORT BEND INDEPENDENT SCHOOL DISTRICT,                                          Clerk

                                                 Plaintiff−Appellant,

versus

DOUGLAS A., as Next Friend of Z.A.; JAN A., as Next Friend of Z.A.,

                                                 Defendants−Appellees.




                  Appeals 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 Bend Independent School District (“FBISD”) challenges a ruling
holding it responsible for reimbursing the parents of one of its former students,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 14-20101
Z.A., for his residential placement under the Individuals with Disabilities Edu-
cation 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 enrolling in one of FBISD’s schools, he was diagnosed
with attention deficit hyperactivity disorder (“ADHD”).               Starting in 2008,
FBISD created, modified, and implemented a Section 504 education 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 disabilities 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.
Despite his disabilities and marihuana use, Z.A. had been performing with rea-
sonable success at school. He had done well on state-administered standard-
ized tests and had bragged to his teachers that he knew exactly how much
effort was necessary to pass his courses.
       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 them
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), prohibits discriminating
against children on the basis of disabilities in educational settings.
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                                     No. 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 that meeting,
although they did not receive the consent form necessary for the testing until
June. Z.A. subsequently failed three courses and was required to attend sum-
mer school. Once the special-education testing was conducted, it was deter-
mined that Z.A. experienced significant emotional 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 Admission, Review, and Dismissal (“ARD”) Commit-
tee meeting was held with school officials and Z.A.’s parents to fashion an indi-
vidualized 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-
cation 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 school, and college were discussed, 3 and the parents
continued to agree with the IEP.


      2The 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 every nine weeks.
      3 Z.A. did not attend the meeting but, before the meeting, had documented his post-
high-school goals with school officials.
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                                    No. 14-20101
      On 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 with
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 adminis-
trative decision; the parents counterclaimed, asking the court to affirm the
reimbursement order and award attorney’s fees. The court granted judgment
for the parents, ordering $7,000 per month in reimbursement for the cost of
CALO, $677.60 in transportation costs, and $90,000 in attorney’s fees.
      The court first determined that FBISD had not made a FAPE available



      4  He also found that the RedCliff placement was not eligible for reimbursement, a
decision not at issue in this appeal.
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to Z.A., which meant that the parents were eligible for reimbursement of a
private placement. See 20 U.S.C. § 1412(a)(10)(C). Next, the court found that
the placement in CALO was appropriate, which is necessary for that placement
to be reimbursed. See Richardson ISD v. Michael Z., 580 F.3d 286, 299 (5th
Cir. 2009). FBISD challenges both of those determinations.
      We review de novo, 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 relating to the CALO placement and attor-
ney’s fees, that 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, it must
be “1) essential in order for the disabled child to receive a meaningful educa-
tional benefit, and 2) primarily oriented toward enabling the child to obtain an
education.” Michael Z., 580 F.3d at 299. Two 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 educational achievement.” Id.
at 301. The court’s findings in support of the placement, though the result of
a thorough opinion and conscientious effort, did not properly apply Michael Z.
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                                  No. 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 300. The district court,
however, relied on evidence showing merely that CALO would “focus on the
root cause of this student’s educational difficulties,” namely, RAD. That reli-
ance was misplaced. Whether a placement will help the student is properly
considered 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 educational benefits is irrelevant
under that factor if those benefits are incidental to the reasons for placing him.
      For the RedCliff placement, the evidence uniformly supports the conclu-
sion that the parents placed Z.A. for noneducational purposes; indeed, the
court found that he was placed at RedCliff because his parents were concerned
that he would make another attempt at suicide and because he had a drug
problem. There is, however, no evidence showing that they then enrolled Z.A.
at CALO for educational reasons. The court’s contrary finding is unsupported
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-
cumscribed nature of the reimbursement requirement.
      The second factor identified in Michael Z., “whether the child’s progress
at the facility is primarily judged by educational achievement,” ensures that
the residential program defines its own mission as primarily educational.
Measuring progress by educational achievement 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
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                                  No. 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-
cational achievement. Dr. Ken Huey, CALO’s founder, 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 treating 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 insufficient.
      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 education.” Id.
A court must still conduct “analysis of the services as a whole” to determine
the placement’s primary orientation. Id. “Related services” enumerates par-
ticular 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
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                                No. 14-20101
more than just 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, the court erred in its application of the Michael Z.
factors and in making 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 appropriateness of the placement, the district court
erred in concluding that the placement was appropriate.
      The judgment is REVERSED, and judgment is RENDERED for FBISD.




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