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December 2015 Vol. 23. No. 3 Focus on Standardized Tests

Eye on special education

Appeals ruling explains time limits

By

Sonja D. Kerr and Jennifer Y. Sang

on Dec 3, 2015 02:31 PM

Parents of children with disabilities need to be aware of a new legal case that affects families’ rights. Recently, in G.L. v. Ligonier Valley School District, the U.S. Court of Appeals for the Third Circuit explained how long parents can wait to bring a legal action if they do not like the special education services the school district is providing their child.

When a parent takes legal action about special education services, there are three kinds of remedies. First, the court can order improved services at a public school. Second, the court can order reimbursement for services the parents have purchased while the public school program was deficient, including tutoring, speech therapy, other therapies, evaluation costs, and even private school. Finally, the court can order compensatory education services.

Compensatory education services are based on a calculation of the number of educational hours the child was denied. If the child was denied speech and language services for one hour every day, the district will be ordered to make up the loss by providing the child “compensatory education of one hour a day” for each day the child went without speech therapy. The child’s parent then gets to find services that will help the child, and these services have to be paid for by the district. This means that the more years for which the parents can sue, the more the family stands to receive in reimbursement and compensatory education as remedies for the lost educational services.

Under the federal Individuals with Disabilities Education Act (IDEA) and Pennsylvania law, parents have two years to take legal action. Parents have to start counting two years from when they actually knew or had enough information to reasonably inform them that the district was denying the child an appropriate special education program. This is referred to as the “knew or should have known” date. Before this case, most Pennsylvania special education hearing officers limited relief, or remedies, to only two years before the parents took legal action. So, if a parent took legal action in a child’s senior year, the remedy was limited to two years, or back to the child’s sophomore year.

In this case, G.L. entered 9th grade in the Ligonier Valley School District in the fall of 2008. From that time until his parents withdrew him in March 2010, his 10th-grade year, the parents were upset about the lack of an appropriate program for him. But the parents did not take legal action until January 2012, when G.L. was a senior. So the question before the court was whether the parents could have a legal action for the alleged denial of a free appropriate education during G.L.’s 9th- and 10th-grade years if they waited until his senior year to take legal action.

The court ruled that the parents would be able to bring remedies dating back to the beginning of G.L.’s 9th-grade year (fall 2008), when the violations first occurred. The court explained that, as long as the parents take legal action within two years of knowing the program was deficient, the child is entitled to have a complete remedy.

So, although parents must still take legal action within two years of when they know their child is not getting the special education he or she needs, they may be able to seek a remedy that stretches back longer than two years. For example, if parents take legal action when the child is in 5th grade, they may be able to seek a remedy for not only 4th and 5th grade, but also prior years, possibly as far back as 2nd or 3rd grade.

How hearing officers and the lower courts will apply this new ruling is unclear, so parents should still seek legal assistance as soon as possible when they suspect a district has violated their child’s rights in special education matters.

About the Author

Attorney Sonja D. Kerr is director of the Disabilities Project for the Public Interest Law Center. Jennifer Y. Sang is an attorney for the Law Offices of David J. Berney.

Comments (1)

Submitted by Anonymous (not verified) on December 3, 2015 3:26 pm

All the court rulings in the land don't mean a thing. No one is left in Special Ed to actually provide the services. 154 SPED openings on the REAP site today. Big surprise.

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