A.P. v. School Board of Fairfax County No. 1:21-CV-504, 2022 WL 1105076, 80 IDELR 277 (E.D. Va. Apr. 13, 2022), affirmed a decision of a hearing officer in favor the school district in a case involving a student with severe dyslexia and other conditions. Along the way, the court corrected errors committed by the hearing officer, nevertheless deciding that the errors did not change the ultimate result.

The student was identified for special education on the basis of a language impairment as early as kindergarten, which she repeated. She demonstrated serious struggles with reading in first grade. The school district tried a variety of reading interventions in first and second grade, including Wilson Foundations, but the parent was concerned that the district did not use the more intensive Wilson Reading program, and that the doubling-up of the Foundations program by both the teacher and a paraprofessional caused the student frustration manifested in bed-wetting and emotional outbursts at home. The parent signed a contract with a private school at the end of the second-grade year, but also obtained insurance in case the student did not enroll.

The parent, an attorney, consented to the proposed IEP for third grade in a meeting in March 2018, but that summer the student attended a summer program at Georgetown University’s Center for the Study of Learning, and the lead researcher told the parent that the student’s challenges were very severe and required immediate intervention. The parent asked for a new IEP meeting, but scheduling was difficult over the summer and on August 20, the parent gave notice of her plan to withdraw the student and obtain tuition reimbursement. The district held a meeting on August 27 at which it rejected the reimbursement request, and the parent did not immediately pursue the tuition reimbursement request, but did enroll the student at the private school for third grade. The private school found the student’s deficits to be much more severe than the public school had determined.

The district offered more extensive special education services in a proposed IEP for the student’s fourth grade year. There were disputes over the student’s assessments, including a test that showed a much lower IQ than previously found and led to the district’s conclusion that the student’s performance was commensurate with the lower IQ. The parent did not demand a due process hearing at that time, and during the student’s fourth grade at the private school the parent signed a contract with the private school for the next school year. At the end of the student’s fourth grade, the district proposed an IEP for fifth grade again increasing services. The next fall, a private auditory assessment found that the student had an auditory processing disorder, but the district said that it had a policy to accommodate auditory processing disorders, but not to create goals to remediate or treat it. Questions the parent raised about lack of the public school personnel’s training and knowledge about dyslexia were not answered, but instead the parent was referred to the district special education office. The proposed fifth-grade IEP featured additional services, including Orton-Gillingham methodology and small group instruction plus counseling to address anxiety. The parent filed for due process before the beginning of the student’s fifth grade year, challenging the IEPs for the third through fourth grade and amended to challenge the fifth grade IEP as well. The hearing officer decided in favor of the school district.

On appeal, the court upheld the district’s IEPs. It rejected an argument that the district predetermined the last IEP by holding a meeting before the IEP meeting to write a draft IEP, noting that the district modified the draft in response to the parent’s concerns. The court said the IEP was adequately specific and the evidence showed there had been a dialog with the parent. The court emphasized that the public school program was a less restrictive environment than the private school. The court then cited Board of Education v. Rowley, 458 U.S. 176, 206 (1982) for the proposition that the standard of review for free, appropriate public education is a “basic floor of opportunity” and quoted language from Endrew F.. Douglas County School District RE-1, 137 S. Ct. 988, 999 (2017), that an “IEP must be ‘reasonable,’ but does not have to be ‘ideal.’” A.P., 2022 WL 1105076, at *10. The court applied the Rowley language to uphold the programs for the three relevant school years.

The court, however, corrected the hearing officer on two counts. First, it held that the hearing officer was wrong in holding that the parent was estopped from being reimbursed for the first of the school years because she failed to advise the IEP team during the IEP meeting the previous spring that she planned to enroll the student in the private school, and also because the parent consented to the IEP by signing it, and as a lawyer she should have understood the consequences of the consent. The court said that the hearing officer failed to acknowledge that the law provides that an IEP may be modified after it is signed in the event that a change becomes appropriate; moreover, “the IDEA follows a ‘knew or should have known’ standard and contains no explicit rule of estoppel.” Id. at *11 (citing 20 U.S.C. § 1415(b)(6)(B)). The information from the Georgetown program was newly discovered evidence that the student’s situation was worse than what the district communicated. The parent made a timely request for a new IEP meeting and provided notice of the private school enrollment and reimbursement request before that meeting. What is more, the parent’s communications showed a willingness to keep the student in the public school if that was possible, further evidenced by buying insurance for not enrolling the student privately.

The court found a second problem with the hearing officer decision in that it appeared to reject tuition reimbursement on the supplemental ground that the private school was not closing the gap between the student and her peers. The court said that this was not the correct reimbursement standard. Instead the standard was whether the private placement enabled the student to receive some educational benefit, and the evidence showed that it did. However, neither error by the hearing officer supported reversal of the administrative decision because the public school was held to have offered the student FAPE for the years in question.