February 2024: 

The MLO Minute: “McAndrews Law Prevails in Major Special Education Federal Court Decision” 

By Dennis McAndrews, Esq., Founder and Managing Partner Emeritus, and Jacqueline Lembeck, Esq., Lead Wyomissing, Pa Special Education Attorney — 

One of the most important and challenging issues in special education is the point at which school districts or charter schools have an obligation to evaluate a child to determine whether that child requires special education services. The statute is clear on this issue of “child find” – once a public school or charter school has “reason to suspect” that the child has a disability and may require special education, the obligation commences to conduct a fully comprehensive and complete special education evaluation with appropriate testing and observation. Too often, we experience situations where schools delay for too long in conducting an evaluation of a struggling child, which can have significant negative impacts upon the child’s learning. A related issue with this child find obligation is the operation of the statute of limitations under federal special education law, and whether compensatory education is owed to the child for the failure to provide a free appropriate public education (FAPE) for the lost educational opportunities.

The United States District Court for the Middle District of Pennsylvania recently issued a significant decision in one of our cases addressing child find and the statute of limitations. In this action entitled P.G. v. Derry Township School District, a hearing officer limited the parents’ claims to two years during which compensatory education could be granted. The school district had argued that the parents had long expressed concerns about their child’s education to support its claim that the parents knew or should have known of any prior violations to trigger the statute of limitations and bar claims relating to the prior school years.  But in an appeal filed by our office, the federal court clearly disagreed and held that despite the family’s statements of concern, it was not until the district actually conducted an evaluation which clearly alerted, for the first time, the parents to the student’s significant disabilities requiring special education, that the parents were on adequate notice of the school district’s failure to provide FAPE. The court stated the following:

“The relevant inquiry is not whether the student’s parents were concerned about his academic performance and educational supports before the Evaluation Report was issued, but whether they knew or should have known that the District would not provide the student with the educational supports necessary to provide him with a FAPE…. But it was not until the District issued its January 2020 Evaluation Report, including detailed findings about the student’s educational performance and testing results, and including the District’s ultimate conclusion that the student was not eligible for special education supports, that his parents could be charged with actually or reasonably knowing that the District would not provide him with a FAPE.”

Moreover, the court emphasized that the bar is low in requiring school districts to evaluate struggling students, by clearly reiterating the legal principle that wherever there is “reason to suspect” a need for special education, the district is under an obligation at that point to conduct a comprehensive and complete evaluation. Indeed, in just one paragraph of the decision, the court reiterated this standard multiple times and emphasized the word “suspects” three times. Footnote 29. The court contrasted a school district’s requirement to evaluate when there is “reason to suspect” with a parent’s obligation to commence an action when the parent “knew or should have known” of the violation, emphasizing that parents do not necessarily have knowledge just because they have expressed concerns.

We serve special education clients throughout Pennsylvania and Delaware, in all regions of both states. Our track record is excellent, our consultation and record review is free, and most cases are handled on a contingency basis where families do not pay us a retainer or our hourly fees, which we can recoup upon successful completion of the case from the public school or charter school. If your child is struggling or you believe that appropriate services have not been provided, please reach out to us by CLICKING HERE or by calling any of the phone numbers listed on our website. We are here to help.