In the case of School District of Philadelphia v. Kirsch, the Third Circuit Court of Appeals offers some cautionary tales to school districts in the development of IEP’s and how costly the failure to get the process right can be. However, with some careful planning, many of the issues that arose in Kirsch can be avoided.
Background of the Case
Kirsch involved twins eligible for special education serviced under the IDEA who has been diagnosed with Autism Spectrum Disorder. In February of 2013, the parents contacted the district about both children entering the district as kindergarteners for the 2013-14 school year. An evaluation of both children was conducted and an IEP team meeting was convened in June of 2013.
The parents and the district began, but did not complete, the review of the IEP at this June 2013 meeting and at the end of the meeting, no NOREP was issued. The parents attempted several times to conduct the district over the summer of 2013, but were met with limited success and no subsequent IEP meeting was scheduled nor was a NOREP issued.
Concerned about the process, the parents secured a private placement for the students and on August 20, 2013, advised the district in writing that they would be placing the students at the private school and seeking tuition reimbursement, but further advised that they were willing to work with the district through the IEP process.
In response to this letter, some twenty-two (22) days later, the District convened a meeting on September 11, 2013, and issued a NOREP for placement in an Autistic support classroom. However, the Court notes a decision had been made by the district in July of 2013 that the students would be placed in such a classroom and which school it would be at, but did not issue a NOREP or notify the parents of this prior to the September 11, 2013 meeting.
The parents rejected this placement on September 15, 2013, but continued to work with the district through the IEP process. The parents had the students attend a private school placement, which cost $64,050.00 per student per year, which included basic tuition, the provision of a one to one aide, and additional costs for related services.
Parents filed for due process and were awarded much of the cost of the private school placement. An appeal to federal court followed, with the court essentially affirming the due process decision and also awarded close to $190,000 in attorney’s fees and costs. An appeal followed to the Third Circuit.
The Court’s Analysis
First, the Court found that tuition reimbursement was proper because the district failed to provide an offer of a FAPE to parents until just prior to the start of the school year, denying the parents a meaningful opportunity to participate in a discussion about the IEP and placement.
Second, the Court found that the parent’s conduct was not inequitable because they provided the district ten-days notice of their intent to enroll the students in a private school, waited more than ten-days to enroll them, and the district failed to act on this notice within the ten-days.
Third, the Court found that the parents were entitled to reimbursement not only for the basic tuition at the private school, but also for any additional costs that were necessary to provide the students with needed services, such as OT or speech, but only for such a level as was necessary for the provision of a FAPE and not for additional services the parents wanted.
Bottom Line for Schools
The Court’s decision in Kirsch presents several important lessons for school entities:
- An LEA must ensure that an IEP and NOREP that details placement and the program being offered to the student is on the table prior to the start of the school year, which is critically important to students entering kindergarten.
- If an IEP meeting is held but unable to complete the review of the IEP, make sure that a follow-up meeting is scheduled right away.
- If the school team is considering certain placements, but an IEP cannot be convened right away to discuss them, the school should advise the parents of the options being considered.
- If the LEA receives a rejection of that NOREP or notice that the parent intents to place the student in a private school, the LEA should act by convening an IEP team and revising the IEP, to the extent deemed necessary by the LEA, no more than ten days after the receipt of the letter from the parents.
- Even after this date, the LEA should continue to work collaboratively with the parents in the IEP process.
The Court’s decision in the Kirsch case should drive home these points and that the failure to act on them can be costly.
If you have any questions about the IEP process, please contact your legal counsel or one of the Special Education attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.
