The good news: Contrary to the cases suggesting otherwise, private schools do not always “automatically” meet the legal standard necessary in tuition reimbursement cases. As you know, tuition reimbursement is only awarded when the court finds that the district failed to provide a free appropriate public education (“FAPE”), the student is enrolled in a “proper” private placement, and the equities weigh in favor of reimbursement. A placement is proper when it provides “significant learning” and confers “meaningful benefit” delivered in the least restrictive environment. Ridgewood Bd. of Educ. v. N.E., (3d Cir. 1999).
While the United States Court of Appeals for the Third Circuit has long-used the Burlington-Carter approach to analyze tuition reimbursement cases, it has seemed as though the standard for private schools was an easy one to meet. So, if a district did not provide FAPE, parents often won reimbursement cases, barring some good faith failure. In a recent case, H.L. v. Downingtown Area Sch. Dist., (3d Cir. 2015), the Third Circuit ruled that if a student makes little to no progress at a private school placement, the district is not liable for tuition reimbursement, even if the district failed to provide or offer FAPE.
The bad news stems from a child find case litigated out of the Western District of Pennsylvania in G.L. v. Ligonier Valley School District. While the Third Circuit’s decision in Ligonier finalizes that parents have two (2) years from the date they knew or should have known (“KOSHK”) of a deprivation of FAPE to request a hearing (disposing of the prior “2+2” interpretation espoused by some), it adds an important element: if a district is found in violation, it must provide compensatory education for the period equal to the deprivation. In other words, if a child has been deprived of FAPE for five (5) years, depending on the evidence available, a district could be liable for five (5) years of compensatory education. The Court in Ligonier liberally interpreted the IDEA to construe the statute of limitations (preservation of claims and remedies) in greatest favor of parents. Stock and Leader anticipates and is watching for an appeal to the United States Supreme Court, in which this new interpretation of many complex statutory terms might be better balanced to represent the interests of both districts and parents. As a result of this case, the prior interpretation, that remedies for an “injury” under IDEA are limited to a two-year period before the complaint is filed, is no longer law in Pennsylvania. As it stands, this decision places no known cap on damages and courts can remedy the entire period of violation.
It’s not so ugly: Ligonier requires districts to be proactive and train both special and regular education teachers and staff on the importance of identifying, documenting, and addressing special education issues. Thus, the child find obligation is particularly important for teachers and staff to understand and follow. For identified students, be cognizant of applicable reevaluation obligations and make sure you are in constant contact with parents and documenting their concerns and questions related to their child’s special education programming. This action can solidify a defensible “KOSHK” date.
The Third Circuit also noted that the “period equal to the deprivation” for which a district could be liable for compensatory education, does not include the time reasonably required for the district to rectify the problem. Consider, too, that record retention policies may need to change to allow for longer retention of special education records, so as to provide documentary support for the “KOSHK” date, district defenses to claims, and limits to remedies.
Therefore, identify and address special education issues and concerns in your district. You can minimize any potential compensatory education, and avoid tuition reimbursement liability! If you would like any assistance in addressing “the good, the bad, the ugly” – for instance, you feel professional development for your staff and teachers is necessary – please contact the School Law Group.