Posts Tagged ‘Special Education’
I am digesting the argument transcript from today’s oral argument before the Supreme Court in Forrest Grove v. T.A., a special education case about private school tuition reimbursement. I will provide a thorough overview of the Court’s decision when it is released, but the argument itself is noteworthy (and not because it is good for a laugh). I encourage anybody who has even the slightest interest in special education law to read the argument, which you can download here. In this post, I will examine the argument and give background that may help you better understand the decision when it comes out.
I am going to assume that readers of this blog have a general understanding of how special education law works and that you know acronyms like IDEA, IEP and FAPE. If I’m wrong, that’s what comments are for. Also, I am simplifying the facts of the case to focus on substantive issues, not procedural details.
In this case, Forrest Grove evaluated one of its students, T.A., and found him ineligible for special education. When this happened, T.A.’s parents decided unilaterally (i.e. without consulting Forrest Grove) to place him in a private school – to the tune of $5,200 per month. The parents also initiated a special education due process hearing. The hearing officer considered Forrest Grove’s evaluation and other evaluations obtained by the parents, and determined that Forrest Grove got it wrong. T.A. had been eligible for special education all along. Forrest Grove appealed that decision, but developed and offered an IEP while the appeal was pending. In other words, Forrest Grove honored the hearing officer’s order even while fighting in court to have it overturned. The parents rejected the Forrest Grove’s IEP and, instead, pursued claims for tuition reimbursement
On the topic of tuition reimbursement, the IDEA says, in part, “If the parents of a child with a disability, who previously received special education and related services… enroll the child in a private elementary school or secondary school without the consent of… the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if… the agency had not [offered FAPE to the student]… in a timely manner prior to that enrollment.” To get the full text, click here and scroll down to (10)(C).
Forrest Grove keyed in on the language, “who previously received special education and related services.” They argued that language means students are entitled to private school tuition reimbursement if their school district fails to offer FAPE and they had previously received special education. In this case, T.A. had not previously received special education because, at first, Forrest Grove said he did not qualify and later, because his parents rejected services. Thus, Forrest Grove argued that T.A. was not entitled to tuition reimbursement as a matter of law.
T.A. (in conjunction with the Obama administration) argued that the Court must not allow school districts to circumvent their obligations to students with disabilities simply by refusing to find such students eligible for special education. In essence, T.A. focused on the consequences of the rule proposed by Forrest Grove: that school districts could avoid all potential liability for tuition reimbursement by simply refusing to find students eligible for special education. This, according to T.A., would set up a perverse incentive for school districts to deny services. Moreover, according to T.A., when the IDEA is read as a whole, Congress wanted school districts to pay tuition reimbursement if they deny FAPE and parents have to find services on their own. In T.A.’s point of view, Forrest Grove is arguing for a loophole that would thwart the intent of Congress.
One topic that kept creeping into the arguments is truly fascinating: If students must receive special education from their school districts before they are entitled to reimbursement, how much time must they spend in public school before switching to private education? Can a student spend one day in public school and then seek reimbursement? Forrest Grove told the Court that ten days in public school would suffice, and that timeline is supported by the IDEA. T.A. argued that the IDEA does not say how much time students must spend in public school because spending time in public school is not a prerequisite to a tuition reimbursement claim. I hope the Court will discuss this distinction in detail, as it may have an unexpected impact on school personnel decisions (e.g. how can schools make staffing decisions when some students will be in school for only 10 days as a means of securing a tuition reimbursement claim).
Forrest Grove is asking the Court to literally apply what the law actually says. T.A. is asking the Court to give deference to what, in their point of view, the law was intended to do. Of course, the arguments on both sides are much more complex than what I’ve laid out here. If you are interested in special education law, you should read the transcript.
On April 14, the United States Court of Appeals for the Third Circuit decided Jonathan H. v. Souderton Area School District. This case sets the standard for special education appeals procedures in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands. I’ll dissect what happened and what it means. For purposes of this blog, I’m going to ignore the fact that Pennsylvania used a “two tier” hearing system at the time of this case. PA’s shift to a “one tier” system makes no difference.
Feeling that his needs were not being met, Jonathan’s parents placed him in a private school. Jonathan then sued his school district, Souderton, alleging that Souderton failed to offer him an appropriate special education as required by the IDEA (the primary, federal special education law). Jonathan demanded both compensatory education (i.e. hours of services to remedy educational failures) and tuition reimbursement.
Although there is significant variation from state to state, the first step of a special education lawsuit is called a Due Process Hearing. In Pennsylvania, where this case arose, Due Process Hearings are conducted by Hearing Officers. In this case, the Hearing Officer gave Jonathan half of what he demanded. Jonathan won compensatory education but lost tuition reimbursement.
Under the IDEA, if you go through a state’s entire administrative system and lose, you have 90 days to bring your case to state or federal court. Although the court case looks like an appeal of the Hearing Officer’s decision, technically, the court case is a brand new lawsuit. This case hinges on that distinction.
On the 90th day, right at the deadline, Jonathan started a lawsuit in federal court against Souderton in an attempt to get the tuition reimbursement that the Hearing Officer would not give him. Jonathan officially initiated this lawsuit by filing a document called a Complaint. 70 days after Jonathan filed his Complaint – 160 days after the Hearing Officer’s decision – Souderton responded by way of a document called (uncreatively) an Answer. Souderton’s Answer stated its defenses, but it also included something called a Counterclaim. Without dicussing the finer points of the federal rules of civil procedure, Souderton’s Counterclaim attacked the Hearing Officer’s prior compensatory education award.
Jonathan had no problem with the District’s Answer, but took issue with its Counterclaim. Jonathan argued that the Counterclaim was – in reality – an appeal of the Hearing Officer’s award. As such, Souderton was over the 90 day deadline. The counterclaim, according to Jonathan, was made on the 160th day and must be dismissed. In short, Jonathan argued that Souderton should not be allowed to challenge the compensatory education award because it waited longer than 90 days to do so.
After some initial success, the Third Circuit ultimately disagreed with Jonathan. Technically, Jonathan’s attempt to get tuition reimbursement through the federal courts was a new case. Therefore, Souderton’s timeline to respond and to file counterclaims runs from the day that Jonathan moved the lawsuit into federal court.
Under the standard set by this case, school districts and parents must proceed with caution when bringing special education matters before federal judges. Here, Jonathan thought he had compensatory education all locked up. He had the Hearing Officer’s award, which was affirmed by the appeals panel. Moreover, 90 days had gone by and Souderton had not challenged the compensatory education award. Jonathan must have been shocked when the court decided that Souderton was allowed to challenge that award on the 160th day.
The shoe could easily be on the other foot. The precedent set by this case may prove to be just as harmful to schools as it is to students and parents. Unfortunately, I fear that this case will be used as a vehicle for both sides to punish each other for moving cases into the courts after the conclusion of administrative proceedings. So much for finality.