Second Circuit: School District Can't Rehabilitate Inadequate IEP with Testimony that Services Beyond the IEP Would Have Been Provided

Last week, the Second Circuit decided a technical but important case about the Individuals with Disabilities Education Act and private school reimbursement.  The case, R.E. v. New York City Department of Education, involved the legal rules that apply to the following fact pattern: A school district offers a child with a disability an individualized education plan, but the child's parents reject the proposed IEP as inadequate, place the child in private school, and seek tuition reimbursement.  In the reimbursement proceeding, the parents argue that the IEP was, within its four corners, inadequate.  But the district argues that if the parents had allowed them to implement the IEP the district would have rectified the inadequacies that the plan had on paper.

The court addressed the question whether a school district can offer this sort of hypothetical or counterfactual testimony (which the court confusingly called "retrospective testimony") to rehabilitate an inadequate IEP.  The court answered that question in the negative.  The court reasoned that the IDEA gives parents a choice when presented with the IEP: accept the IEP and keep their child in public school, or unilaterally place their child in private school and seek reimbursement.  And the only way that this system can work is if parents can rely on what is in the written IEP:

In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. Under the Department’s view, a school district could create an IEP that was materially defective, causing the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington/Carter hearing with evidence that effectively amends or fixes the IEP by showing that the child would, in practice, have received the missing services.

The court did say, though, that a reimbursement hearing need not be limited to the four corners of the IEP.  A school district can provide testimony "that explains or justifies the services listed in the IEP," but the court held that it cannot provide testimony "that materially alters the written plan."