defined 'within' as including children whose parents reside in the state but who receive services in or from another state." Id. "Nevertheless, Congress defined the scope of 'within the state' to place financial responsibility for children's special education on the local agency ("LEA"); i.e., the local school district, in which the parents reside." Id.
The court explained that a child might be placed in another state because, during the course of developing an IEP for a child, the parents' LEA might determine that no in-state facility or school could provide the appropriate special education or related services. See id. (citing 20 U.S.C. § 1401(a)(18)). In addition, the LEA that places the child must exercise supervisory authority over the service provider to ensure that the child is receiving the appropriate education. See id. at 183 (citing 20 U.S.C. § 1412(6)). Finally, the court noted that under the statute, the parents' LEA retains financial responsibility for the cost of services provided by another state or facility. See id. (citing 20 U.S.C. § 1413(a)(4)(B)). However, the court concluded that the parents' LEA bears such financial responsibility only when the child is in the out-of-state facility or school because the parents' LEA developed an IEP that placed her there. See id.
Based upon these principles, the Wise court concluded that "parents generally render their children ineligible for free special education by unilaterally changing their child's educational placement." Id. (citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13, 114 S. Ct. 361, 365, 126 L. Ed. 2d 284 (1993)). Moreover, the court warned that "'parents who . . . "unilaterally change their child's placement during the pendency of the review proceedings, without the consent of the state or local school officials, do so at their own financial risk."'" 80 F.3d at 184 (quoting Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S. Ct. 361, 366, 126 L. Ed. 2d 284 (1993) (quoting in turn School Comm. of Burlington, Mass. v. Department of Ed. of Mass., 471 U.S. 359, 373-74, 105 S. Ct. 1996, 2004, 85 L. Ed. 2d 385 (1985))).
The rationale for this conclusion rests upon the IDEA's definition of "free appropriate public education" as "education 'provided in conformity with the individualized education program required under section 1414(a)(5) of this title.'" Id. (quoting 20 U.S.C.A. § 1401(a)(18)(D)). Therefore, if parents unilaterally change their child's educational placement by taking her out of her current placement the child is not receiving an education in conformity with the IEP specifically devised for her.
As noted above, the basic difference between the present case and Wise is that in Wise the parents changed the educational placement of their children without consulting their LEA or objecting to the IEP which had been developed by their LEA for their children. Here, the Catlins maintained Dell's educational placement in the District when they moved to Massachusetts. When they moved, they did not consult with their new LEA about Dell's education. Therefore, their Massachusetts LEA did not have the opportunity to develop an IEP for Dell. Such an IEP would have included a determination as to whether Dell could receive the free appropriate public education to which he was entitled within the Massachusetts LEA or whether the appropriate educational placement for Dell was in the District.
It follows from Wise that having had no opportunity to develop an IEP for Dell, the Massachusetts LEA cannot be held financially responsible for the education which Dell received in the District. Moreover, although the Catlins did not "unilaterally change" Dell's educational placement, they did "unilaterally choose" Dell's educational placement in contravention of the requirements of the IDEA, and by doing so they ran the risk that they would be held financially responsible for their decision.
Another case which illustrates this point is Doe v. Metropolitan Nashville Pub. Sch., 931 F. Supp. 551 (M.D. Tenn. 1996). The issue in Doe was whether a public school system should provide reimbursement to the parents for the costs of a unilateral residential placement made by the parents of a seriously emotionally disturbed student who, prior to that placement, had never been in the public school system. In Doe, the parents resided in Nashville. From the time the child reached school age through the end of his enrollment at the Grove School, a private residential school in Connecticut for which the parents sought tuition reimbursement, the child was enrolled only in private schools. The defendant public school system had no involvement in or knowledge of the parents' decision to place their child in any private school.
The court held that if the school district acts through an IEP to place a child in a private setting, the school district must pay the costs. However, "'the same is not true when the parents unilaterally place the child in a private setting.'" Doe, 931 F. Supp. at 553 (quoting Metropolitan Nashville and Davidson County Sch. Sys. v. Guest, 900 F. Supp. 905, 911 (M.D. Tenn 1995)). The court explained that "'it is axiomatic that a school system's obligation to provide free appropriate public education extends only to those students who are enrolled in that school system. Until the child is enrolled in the system, the system has no responsibility to evaluate or formulate a program for that student.'" Id. (quoting Robertson County School System v. King, 22 IDELR 451 (M.D. Tenn. 1995), appeal docketed, No. 95-5529 (6th Cir. April 25, 1995)).
In the present case, Dell was never enrolled in the school district in Massachusetts in which his parents resided. Therefore, under Doe that district had no responsibility to evaluate and formulate an IEP for him. Consequently, Massachusetts has no financial responsibility for Dell's continued educational placement in the District.
Although there are factual differences between Doe and Wise on the one hand and the present case on the other, the well-reasoned decisions which the courts reached in those two cases lead this court to conclude that under the circumstances of this case Massachusetts bears no financial responsibility for Dell's educational placement within the District. Therefore, it would be futile for the court to allow plaintiffs to amend their complaint to join Massachusetts as a party to this action because neither plaintiffs nor the District would be able to state a claim upon which relief could be granted against Massachusetts.
For the reasons stated above, the court concludes that before plaintiffs can assert the issues raised in their motion they would have to seek the court's leave to amend their complaint to add Massachusetts as a defendant to this action and to assert a cause of action for tuition reimbursement. Assuming that plaintiffs were to make such a motion, the court holds that, despite the general rule that leave to amend should be freely given, this is one of those infrequent cases in which the court should deny such relief because any such amendment would be futile. Accordingly, the court GRANTS the District's cross-motion for summary judgment dismissing the complaint. In addition, the court GRANTS the Commissioner's motion to dismiss the complaint against him. Finally, the court DENIES plaintiffs' motion as moot. In light of these rulings, the court instructs the Clerk of the Court to enter judgment dismissing the complaint in its entirety with prejudice.
IT IS SO ORDERED.
DATED: December 10, 1997
Syracuse, New York
HOWARD G. MUNSON
SENIOR U.S. DISTRICT JUDGE