The U.S. Court of Appeals for the Second Circuit, in R.E. v. New York City Department of Education, Docket Nos. 11-1266-cv, 11-1474-cv, 11-655-cv, on Sept. 20, 2012, set an important precedent 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, meaning backward-looking, testimony from a school district that certain services not listed on the IEP would actually have been provided to the child if he had attended the school district’s proposed placement.

As background, under the IDEIA, every public school district has the affirmative obligation to provide each student with a disability a free appropriate public education (FAPE) and an IEP. As one remedy under the act, 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. See Burlington School Comm. v. Mass. Dept. of Ed., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Parents initially file for a due process hearing and may appeal a decision to the New York State Review Officer (SRO) and then to state or federal court. In order to prevail in a Burlington-Carter case, parents must win on three prongs: 1) the school district must have failed to provide or offer the student a free appropriate public education, 2) the parents must show that the private school is appropriate and 3) equitable considerations must support the claim.

The IEP, according to courts, represents the centerpiece of the IDEIA. Before this decision, the permissibility of retrospective testimony on IEPs represented an open question in the Second Circuit. Other circuits such as the Ninth, Third and First circuits have agreed that IEPs should be evaluated prospectively, at the time of its drafting.1 As the First Circuit stated, an IEP cannot be judged exclusively in hindsight and an IEP is more like a snapshot than a retrospective.2

Tuition Reimbursement Cases

This decision actually involved the appeals of three parents on behalf of their children with autism, in tuition reimbursement cases against the New York City Department of Education: R.E. v. New York City Department of Education, No. 11-1266-cv (SDNY 2011); R.K. v. New York City Department of Education, No. 11-474-cv (EDNY 2011); E.Z.-L v. New York City Department of Education, No. 11-655-cv (SDNY 2011). The Second Circuit decided the three appeals in tandem due to common questions of law. In each case, the respective Impartial Hearing Officers initially granted the parents reimbursement and the SRO reversed all three cases and ruled for the department.

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.

The parents’ attorney argued in all three cases that the court should adopt a strict “four corners” rule in evaluating the IEPs which would prohibit any testimony about services beyond what is documented on the IEP. A four corners rule would not allow any testimony beyond the face of the IEP, even elaborating or explaining IEP services or a placement.

In the three cases, the department countered that the court’s review should include evidence of services that the child would have actually received and thus include retrospective testimony on evidence of services beyond those listed on the IEP. For example, in one of the cases, the department introduced evidence of the specific teacher that a student would have had in the class and how she would have taught.

The court rejected the department’s view. Under this 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.

However, the Second Circuit declined to adopt the strict four corners rule that the parents sought. Under this rule, a court would only look at the four corners of the IEP and would not allow any testimony beyond the face of the IEP.

Specifically, the court stated:

Although we decline to adopt 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.

Thus, in allowing some retrospective testimony to explain an IEP, the court essentially found a middle ground. 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.

The court further clarified that a school district, if an IEP states that a particular teaching method will be used, may introduce testimony at a hearing to describe and explain the method. However, the district may not introduce evidence that a different or additional method would be used.

The court rejected the department’s argument that the decision would unfairly skew the reimbursement hearing process in favor of parents. 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.

According to the court, the decision ensures that parents had sufficient information on which to base a decision on unilateral placement. The decision also puts school districts on notice that they must include all of the services they intend to provide in the written IEP.

Application of Rule

In deciding the three 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 Applied Behavioral Analysis (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 had offered a free appropriate public education to the student because it found the IEP was substantively appropriate. The parents claimed that the student needed 1:1 teacher support, not just 1:1 paraprofessional support, but the court found the paraprofessional support sufficient. The court also found the IEP 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, although it noted that such violations could deprive a student of FAPE in other cases. Thus, the court reversed the district court award for tuition reimbursement.

Similarly, in E.Z.-L, the court concluded that the department’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 and school districts, 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 blind-sided 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 and school districts to provide 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. Finally, 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, many parents would already have unilaterally placed their child.

Marion M. Walsh is an attorney with Littman Krooks and a certified Impartial Hearing Officer for children with disabilities.


1. See, e.g., Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995) Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).

2. Roland M. v. Concord Sch. Comm., 910 F.2d at 992.