In R.E. v. NYC DoE, the Second Circuit answered many questions about the availability of reimbursement as a remedy for defects in a child’s special education program as defined by his or her IEP
, but perhaps opened an even larger number of as yet unresolved questions within the circuit about the availability of the remedy for defective implementation of a valid IEP in a particular placement. In doing so it resolves, for the Circuit at least, a tension between the often-disregarded clear holding in Rowley that the first order of inquiry – and the first line of protection of the rights afforded by the IDEA
- must be into whether the Act’s procedural protections have been followed, and the perhaps over-relied-upon premise in Schaffer v. Weast that school districts should be accorded the benefit of the doubt when crafting proposed educational programs for the children they serve.
The result, among other things, is a petition for rehearing en banc by the parents in R.E. arising from what they assert are five distinct problematic holdings in the case.
The implicit premises of R.E. appear to draw two bright lines, though neither is expressly articulated: The case focuses almost exclusively on program rather than placement, and it focuses almost exclusively on reimbursement rather than other remedies. Yet, because it addresses specific narrow factual issues about both placement-related and non-reimbursement remedial orders, it may be interpreted, in my view wrongly, to stand for the conclusion that no remedy is available for defective implementation of a valid IEP.
Here’s how I see what the decision actually holds:
In order to be eligible for reimbursement as a remedy for a defective IEP, a district must have had both notice – presumably in the form of a due process Complaint – and an opportunity to cure the problems alleged by the parents who seek reimbursement – by means of the 30 day resolution period. The Court thus implicitly embraces Justice O’Connor’s conclusion in Schaffer that although parents may ask courts to “to assume that every IEP is invalid until the school district demonstrates that it is not[, t]he Act does not support this conclusion . IDEA relies heavily upon the expertise of school districts to meet its goals.”
Thus, if a parent believes that a CSE has proposed an IEP that does not offer FAPE, they must tell the district what their objections are and allow the district to cure them before they can count on having an IHO order reimbursement for an alternative unilateral parent placement. If the district modifies the IEP in the resolution session, the modified IEP becomes the one that the district must defend even if it was the original proposed IEP that caused the parent to remove the child from the public schools. Thus, the district has an opportunity to cure the defects identified by the parent, and a parent who places a child in a private school before the resolution period concludes (for example, by continuing the child in a prior year’s private placement) runs the risk that they will have to bear the cost of the private placement once the resolution period ends and an IHO (or subsequent review) upholds the resolution-revised IEP.
In short, if the district gets FAPE right – either at the CSE or during resolution – reimbursement is not available as a remedy.
The Court goes on to consider the effect of the actual placement offered by the district from a variety of perspectives that are somewhat jumbled and far less clear. In large measure the lack of clarity derives from the Court’s largely exclusive focus on FAPE and program, its avoidance of identifying placement as potentially also raising the possibility of a defect in FAPE (perhaps because in its eyes all three cases under review were about program defects not actual placement defects), and its failure to connect the various placement-related questions it addresses into a single vision of how placement may affect FAPE. An implicit cohesive model of the rights generated by IDEA with respect to FAPE does, however, emerge from the case’s several holdings:
It considers at greatest length whether an actual placement may be relied upon by the district to cure an otherwise defective IEP. The Court clearly holds that it may not. The district’s opportunity to cure ends at the end of the resolution period, and a district may not rely on the services or programs actually offered by the placement to address the valid concerns about denial of FAPE raised by the parents in their Complaint.
It also addresses, in a far more limited fashion, whether arguments about the actual placement may invalidate an otherwise valid IEP. Where the IEP defines a program that provides FAPE, speculative arguments that the district will not in fact deliver that program adequately in the placement it offers, or arguments that the parent was not sufficiently involved in the decision of what placement to offer, do not lead to an award of reimbursement as a remedy for the alleged likely defective implementation. In making this holding, the Court is coyly silent about whether an ACTUAL failure to implement the defective IEP could result in an award of reimbursement, in part at least because none of the three cases, in the Court’s view, make that claim.
Specifically, the Court rejects the parents’ claim in one of the cases that the district’s past failure to provide IEP-mandated services to children at the specific placement offered may be relied upon as a basis to conclude that it will not do so for a child for whom it has drafted an appropriate IEP. Where FAPE has been offered by the end of the resolution period, that is, Justice O’Connor’s notion that districts should be given the benefit of the doubt and allowed the opportunity to deliver the services they offer before a parent may demand reimbursement for a failure to do so.
In light of the limited factual context, in my view the Court leaves open the possibility – and in my view the necessity – that reimbursement may be available if the district actually fails to implement the IEP properly in the placement it offers. That conclusion is one of the fundamental premises not only of Burlington/Carter awards, but of the original Jose P. plaintiffs.
But significant questions about the scope of the reimbursement remedy for a placement failure remain unresolved after R.E. and even appear to be freshly opened to a scrutiny that may have seemed settled before it:
The Rowley question of how substantial a failure must be to justify award of reimbursement (raised in Rowley around the question of procedural defects and addressed by courts and by the statute to say that only those procedural defects that rise to a denial of FAPE or of parental opportunity to participate in the CSE review may constitute a basis for reimbursement) remains open. While the court echoes the existing law about procedural defects, it almost stops short of addressing substantive defects in the placement itself. Is a failure to provide related services sufficient basis for reimbursement? How about the situation that arose in one of the cases under review (the absence of a BIP)? The court concludes that in that case, where the child was not actually attending, the absence of a BIP prior to enrollment did not invalidate FAPE (treating it as a procedural defect).
Does this mean that a child must enroll in a placement and try it out before alleging actual defects that amount to a denial of FAPE?
Is it ever possible to argue prospectively (before the actual placement starts) that the specific placement offered by the district will not provide services? Surely the case stands for the premise that the district must be offered the opportunity to cure such alleged defects via a resolution session. But if it fails to do so on the face of the program it continues to offer, may the parents seek reimbursement based on arguments about that placement (rather than about the IEP’s program)?
The Court appears to make it far more difficult to allege a deficit in actual placement in a case where the IEP is deemed appropriate under Rowley than perhaps we have accepted by way of parent arguments in the past. And yet, because it need not and does not reach these questions, for me at least there must remain a potential remedy for defects in an actual placement even where the IEP seems appropriate. These will be easiest to rule on where the parent has placed the child in the district’s program (but even there the Court concludes that simple failure by the child to learn in that program does not invalidate, for reimbursement purposes, an IEP that otherwise meets Rowley standards). But there surely are circumstances in which we may find that a district’s program as revealed in the testimony we hear does not in fact implement the IEP we deem appropriate, even after the district has had the opportunity in resolution to cure those defects.
On the other side of the fence, the R.E. Court, in my view, breathes new life into the Rowley holding that the first essential inquiry must be whether the procedural protections of the Act have been adhered to. While it reiterates the notion that these defects must amount to a denial of FAPE to justify reimbursement (and concludes, inter alia, that lack of an FBA does not necessarily do so), it also distinguishes the holding in T.Y. (in which the Court notes that it upheld an award of additional services to augment an IEP that had nonetheless been deemed to provide FAPE even without those services).
I think there is only one way this dicta can be read: Reimbursement as a remedy is held to a higher and more limited standard than other equitable remedies, in particular than the curing of procedural defects or the addition of servces deemed ‘necessary’ in R.E. even though the IEP was held to have offered Rowley-defined FAPE.
Thus, we are in effect invited to order remedies that reshape the child’s actual programs and services even where we conclude that Rowley FAPE has been offered. How can this be possible without overturning Rowley? Presumably (and it is, to be sure, only my presumption) under that neglected first prong of Rowley – enforcement of the IDEA-mandated procedures. We can conclude that an IEP is procedurally defective if it offers FAPE but does not fully meet a child’s needs, and we can correct those violations of both practice and program, even if we can’t order reimbursement for a private placement where a program that meets Rowley’s minimal substantive standard of being reasonably calculated to afford educational benefit.
Read in this light, the decision in R.E. is not an unreasonable set of conclusions, though it does appear to me at least to be a rather conservative and constraining one. In order to obtain reimbursement as a remedy, a district must be afforded notice and an opportunity to cure a defective IEP by the conclusion of the resolution period. If it does so, it is not liable. If it does not, even if the placement it offers does actually subsequently cure those defects, reimbursement is called for.
When there is a valid IEP, however, actual defects in implementation could conceivably justify a reimbursement order under the proper facts (facts that were not present in any of the three cases reviewed in R.E. and that are not defined by the holding of that case). More significantly still, non-reimbursement remedies are available for defects that do not rise to the level of a denial of FAPE, and for deficits in actual placements, even if reimbursement is not.
Such a reading of the holding both views it as clarifying and as breaking some new ground, without grossly overturning any previously clear reading of the law. Still, there is much that could be subject to appeal or refinement in future cases (especially with regard to implementation defects).
1. The ruling that parents may not rely at hearing on evidence that the child did not subsequently make progress if and when they accept the district’s proposed placement to demonstrate that the IEP failed to offer FAPE. In my view the R.E. ruling is limited and not necessarily wrong, precisely because it is limited: The parents may not rely on that evidence for that purpose, but the Court seems to me to allow admission of that evidence to support a showing of what the child’s actual needs were at the time the placement started. Because the CSE could not have had that knowledge when it met, it is not sufficient to constitute a showing that the IEP was defective as drafted (in light of what the CSE could have known), but it can be used both to contribute to a clinical understanding of the child and to document defects in the actual placement’s delivery of the IEP program. Gary is likely correct to seek clarification of this matter because these conclusions are far from clear in the R.E. decision (and in their absence the decision is, in my view, problematic). But whether this will come within the four walls of R.E. or from subsequent litigation remains to be seen.
2. The Court’s conclusion that lack of an FBA, of a BiP, and of mandated parent training on the IEP are procedural violations that in these cases did not amount to a denial of FAPE. Gary argues that these are beyond procedural defects and speak to the substance of the child’s program. In my view, described above, the Court holds in R.E. that defects of this sort do not arise to violating the Rowley standard for FAPE, but could be predicates for IHO- or court-mandated relief other than reimbursement. If I’m right, that’s not great for many of Gary’s clients, but it would address the fact that he is right to argue that the Court appears to give short shrift to these significant substantive lacunae in the chilren’s programs.
3. The Court’s conclusion that the parents’ allegations that the district’s past practice frequently denied mandated services to children at the actual proposed placement. Gary argues, I think correctly, that this fails to take adequate account of the NYS allocation of burden of proof – that once this reasonable concern was alleged in the Complaint, the district had the burden of showing that it would not be the case in this child’s specific placement. To the extent that the argument is limited to this procedural claim about burden of proof, and to the extent that the record did not support the district’s argument that its placement could offer the services on the child’s IEP, it seems well-founded to me.
4. The conclusion that the district may cure any defect by changing its offer at resolution. Gary argues that if a parent provides the mandated 10-day notice and a district fails adequately to respond, the district should not be allowed to cure the alleged defects subsequently, during resolution. In my view, that’s a matter for appeal, not clarification.
5. The Court’s extension of the ruling in T.Y. to the effect that parents are simply not entitled to participate in actual placement determinations. Gary argues that the R.E. court goes a good bit further than the T.Y. court in ruling that parents have no right to participate in those decisions, and he appears to me to be correct. But it also appears to me (a) that the decision is not inconsistent with T.Y. but rather that T.Y. is included within the broader R.E. holding; (b) that the Sevond Circuit does seem to be drawing this bright line in the sand to the effect that there is NO parent role in placement decision-making under the law; and (c) that the Circuit appears to be ignoring significant law and regulation in reaching that conclusion and that justifies further review/appeal of the matter even if the Circuit proceeds as it appears to be doing. Its current holding, however, is binding on us even if I’m not crazy about it, of course.