Second Circuit Rules that School Districts Cannot Use Retrospective Testimony to Rehabilitate Defective IEPs
By Marion Walsh, Esq.
The United States Court of Appeals for the Second Circuit, in R.E. on behalf of J.E. v. New York City Department of Education, has set an important precedent for parents in tuition reimbursement cases, under the Individuals with Disabilities Education Improvement Act (“IDEIA”). The Second Circuit ruled that in evaluating an Individualized Education Program (“IEP”) for a student with a disability, courts and administrative officers must examine an IEP prospectively as of the time of its creation. The decision clarified that courts and administrative officers must not consider retrospective testimony, from a school district on how it would have implemented the program to modify or correct deficiencies in the IEP.
Before this decision, the permissibility of retrospective testimony on IEPs represented an open question in the Second Circuit. Although the decision had mixed results for the parents and students involved, on the whole, the decision represents an important legal victory for parents.
This decision actually involved the appeals of three parents on behalf of their children with autism, in tuition reimbursement cases. As background, under the IDEIA, parents may reject an IEP that they believe is inappropriate, place their child in an appropriate private school and then seek tuition reimbursement from the school district, under the well-known Burlington–Carter standard. The Second Circuit decided the appeals in tandem due to common questions of law. In each case, the respective Impartial Hearing Officers initially granted the parents reimbursement and the New York State Review Officer (“SRO”) reversed all three cases. In each case, the SRO relied on testimony from the school district about the educational program that the student would have received if he or she had attended public school. The parents all challenged the reliance on this “retrospective” testimony. From the parents’ perspective, in order to make an informed decision about the IEP, they had to have sufficient information at the time of its creation.
In contrast, in the three cases, under the New York City Department of Education’s view, the court noted that a school district could create an IEP that was materially defective, cause the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington Carter hearing with evidence that would essentially fix or amend the IEP and add testimony on what services would have been applied. The court found that by requiring school districts to create appropriate IEPs at the outset, the IDEIA prevents a school district from fixing a deficient IEP after the fact.
The Second Circuit declined to adopt the strict “four corners” rule which would prohibit any testimony beyond the face of the IEP. For example, the court noted that a school district could introduce evidence explaining how a 6:1:1 teacher ratio would operate but could not introduce evidence that modified the staffing ratio. Specifically, the court stated:
Although we decline to adapt a four corners rule, we hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.
The Second Circuit did note that during the Resolution process, after parents request a due process hearing, school districts do have the opportunity to amend or correct deficiencies in the IEP. The court stated that a school district that inadvertently or in good faith omitted a required service could cure that deficiency during the resolution period once it receives a due process complaint.
Second Circuit Application of Rule to Students Involved
In deciding the three (3) cases, and applying the retrospective testimony rule, the Second Circuit reached the following results in the three cases:
In R.K., the court found that the Department had failed to provide a FAPE, as there was consensus that the student needed an ABA program and speech and language and occupational therapy. The court found that the IEP offered no dedicated aide and no guarantee of ABA therapy. The Second Circuit found that the SRO should not have relied on extensive testimony from the teacher who would have taught the student on the planned provision of ABA services. Because the court also found the private placement appropriate, it affirmed the judgment of the district court awarding full tuition reimbursement.
However, in R.E., the court found that the Department of Education had offered a free appropriate public education (“FAPE”) to the student because the IEP was substantively appropriate, despite its omission of a functional behavioral assessment and parent training. In that case, due to the student’s needs, the Second Circuit did not find that these violations deprived the student of a FAPE and reversed the district court award for tuition reimbursement. Similarly, in E.Z.-L, the court concluded that the Department of Education’s proposed placement was substantively appropriate. Although the Department’s testimony on parent training was inappropriate, the court held that the omission of parent training on the IEP did not alone establish the denial of FAPE, as parent training was available at the proposed placement. Thus the Court affirmed the district court ruling that the student was not denied a FAPE.
What the Decision Means for Parents
Parents in tuition reimbursement cases always face an uphill battle. But the decision provides needed clarity on the appropriate use of retrospective testimony. Parents of children with disabilities facing a decision on whether to remove their child from public school are entitled to rely on an IEP as written and not be blindsided at a hearing by testimony on corrections or additional services that a child would have received. In addition, the decision should prompt parents to demand more specificity on IEPs as to what services, programs and methodology will be provided.
Of course, the Second Circuit decision leaves many open questions. Future litigation will have to determine where courts draw the line between testimony that explains an IEP and testimony that rehabilitates a deficient IEP. In addition, the Second Circuit’s emphasis on the importance of the resolution period to allow school districts to amend deficient IEPs is perplexing and could be prejudicial to parents, as by this period, parents would already have already unilaterally placed their child.
