In what appears to be the first case of its kind within the Second Circuit, a United States District Court Judge within the District of Connecticut has crafted an order of over $200,000 in compensatory damages for a school board’s violation of the stay-put provisions of the Individuals with Disabilities Education Act [“IDEA”]. More specifically, the court ordered the board to reimburse a special education student’s parents for services that they had purchased and to create an escrow account in an amount equal to the difference between the value of the services the board offered on the last agreed-to individualized education program, or “IEP,” and the cost of the services the parents subsequently purchased.
“Stay put” is a unique aspect of the IDEA which requires that “during the pendency of any proceedings conducted pursuant to this section … the child shall remain in the then-current educational placement of the child.” 20 U.S.C. §1415(j). In other words, this section requires a school district to continue funding the last agreed-upon IEP during the pendency of any administrative or judicial proceeding, regardless of how long those proceedings may drag on.
The case, John Doe v. East Lyme Board of Education, involved an autistic child whose parents rejected the IEP proposed for the 2009-2010 school year, enrolled the student in a private school outside the school district and privately funded some of the services he previously was receiving. The parent then filed for due process, claiming the district failed to offer a free appropriate public education, or “FAPE,” to the student by providing an inadequate IEP for the 2009-2010 school year and failing to offer any IEP for the 2010-2011 school year. Following the administrative due process hearing, the matter worked its way through the courts. The Second Circuit Court of Appeals held that the District offered FAPE for the 2009-2010 school year, but that the failure to offer an IEP for the 2010-2011 year and beyond, despite the fact that the parent had unilaterally enrolled the child in a private school outside the district, violated the IDEA. The Second Circuit also held that the failure to continue to provide the related services contained in the last IEP in effect violated the stay-put provisions of the IDEA. The Court then remanded the matter to the District Court to fashion a remedy and noted that “the appropriate equitable relief for a stay-put violation is reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund, not the (lesser) value of services the Parent was able to afford.”
The District Court, in fashioning a remedy, relied heavily on the fact that this was a violation of stay-put, not a finding that the district had not offered FAPE to the student. While noting that the FAPE standard at the time only required evidence that the student had received some benefit from the IEP, for stay-put violations the Court found that the proper question was the actual value of the services on the IEP, not whether the student made progress during the time in question.
Because the student had only one year left in high school and then would be attending an as-yet-unknown college, the Court found that it would be impractical to order the district to provide the compensatory educational services directly. Consequently, the Court ordered the creation of an escrow account for the student. The Court declined to limit the value of the services to that which the District would pay for similar services, but rather valued them at the market rates available to the parents. The Court thus ordered the District to establish an escrow account for the student in the amount of $203,478.10 to be available until the student graduated college or six years, whichever comes first, as well as to reimburse the parents for out-of-pocket expenses for educational services they had provided for the student.
In recognition that a number of years had passed since the stay-put IEP (which was for the 2008-2009 school year), the Court ordered that the student could use the escrow account to purchase the same or analogous services based on his current needs. The Court noted that the “’analogy’ is that the compensatory services may be ‘unlike’ the services under the stay-put IEP in that they are not the exact same services listed, but there is still a ‘resemblance,’ in that like the stay-put services, the compensatory services are crafted to fit [the student’s] educational needs.” The Court noted that the student’s needs were likely to last at least through college and that he would need at least some services through college in order to succeed academically.
What Is The Take-Away?
When a parent requests due process, a district must continue to fund the last agreed-upon IEP throughout the litigation process unless it has a written agreement with the parent to do something different. Furthermore, even if the parent unilaterally withdraws the student and enrolls him in a different school outside the district, as long as he remains a resident of the district, the district must continue to hold PPT meetings and offer IEPs for the student.