In an interesting case out of the Eastern District of Pennsylvania, the Court found that parents who filed an appeal in a special education due process matter that they lost could simply add as an issue in the appeal a newly-proposed IEP, rather than filing a new due process complaint to contest the appropriateness of the new IEP.
In J.N. v. Penn-Delco School District, parents sought tuition reimbursement for the 2013-14 school year though a special education due process hearing, lost that claim and then filed an appeal in federal court.
In order for a parent to prevail in a tuition reimbursement case, they must establish that the district failed to offer a FAPE, that the placement chosen by the parents was appropriate and that the equities weigh in favor of reimbursement.
When the District issued the IEP in the J.N. case for the 2014- 15 school year, the parents, rather than file a new due process complaint, filed an amendment to the complaint in federal court seeking to raise as an additional issue the appropriateness of the new IEP along with the pending appeal.
The Court found that the two IEP’s were “substantially similar” and that resolution of the issues with respect to the 2013-14 school year would also likely resolve the 2014-2015 issues and permitted the amending of the complaint, although the Court noted that this appeared to be an issue of first impression in the Third Circuit.
This type of approach to a tuition reimbursement case by the courts could, depending upon the outcome, be beneficial to school entities, but also presents risks. On the plus side, if the District won at the due process hearing, it is more likely that the District will prevail on appeal and, absent some significant change in the student, if the IEP was appropriate for the first year, there is a strong possibility that it will continue to be appropriate.
However, this type of approach does “up the ante” on such an appeal – the District now faces the risk of not only having to pay one year of tuition if the Court reverses the Hearing Officer, but two years of tuition.
The Bottom Line
The impact of this decision and its approach is likely to only apply to tuition reimbursement cases, as any other claim will likely require significant additional evidence as to the implementation of the IEP rather than just a review of whether it is appropriate on its face as an offer of a FAPE and, as a result, is unlikely to meet the substantially similar test established by the Court.
If you have any questions, contact your legal counsel or one of the education law attorneys at KingSpry.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
