The opinion of the court was delivered by: Dalzell, J.
Ferren C. and her parents, Ronald C. and Leslie C. (together "Plaintiffs"), sued the School District of Philadelphia ("School District") and asked us to (1) declare her most recent IEP as pendent under the "stay-put" provision of the Individuals with Disabilities Education Act ("IDEA"); and (2) order the School District to develop annual Individualized Education Programs ("IEPs") and serve as the Local Educational Agency ("LEA") for Ferren for three years.
Ferren is more than twenty-one years old and is thus outside of the usual protections the IDEA offers to children with disabilities. However, the School District owes Ferren three years of compensatory education services due to its past failures to provide her with a free and appropriate public education ("FAPE"). The School District is willing to pay for Ferren's compensatory education but contends that it has no other ongoing obligation to her.
The Plaintiffs and the School District both submitted motions for judgment on the administrative record. We will partially grant Plaintiffs' motion and partially grant the School District's motion.
We take many of the facts below from the parties' stipulation of facts, but we supplement that document with undisputed facts from the administrative record. All of these facts substantively agree with those in the opinions the Hearing Officer and Appeals Panels issued in this case, to the extent that they made these factual findings.
A. Ferren's Disabilities and Special Educational Needs
Ferren is a twenty-three year old*fn1 young woman who has multiple disabilities, including autism, pervasive developmental disorder, and speech and language deficits. Joint Stip. ¶ 1. It is difficult accurately to assess her cognitive ability because her IQ is in the first percentile. Id. at ¶ 5. She "has not developed essential basic skills for communication, behavior management and social interaction" and "experiences significant regression in skill acquisition." Id. at ¶¶ 6,8.
During all times relevant to this case, Ferren has lived in the School District. Id. at ¶ 3. Because of her disabilities, the School District identified Ferren as eligible for special education services under the IDEA, 20 U.S.C. § 1401, et seq. Joint Stip. at ¶ 4. Ferren's parents do not have the training or experience to develop a compensatory education program for her, which would involve "highly structured, systematic instruction" that is "specifically keyed" to her particular educational needs. Id. at ¶¶ 7,22.
B. Ferren's Awards of Compensatory Education
This is not the first legal conflict between Plaintiffs and the School District regarding Ferren's education.*fn2 In resolution of past disputes, the School District created a trust fund for Ferren and agreed to provide her with three years of compensatory education. Id. at ¶ 14. As of January 17, 2007, the School District estimated that the compensatory education would cost $218,670 at Elwyn Davidson School, Ferren's most recent placement. Id. at ¶ 17. The parties intended for her compensatory education to begin in the 2007-08 school year. Id. at ¶ 14.
Unfortunately, the parties have not consistently or precisely defined these three years of compensatory education. In fact, although the record includes documentation of two of those years, neither party was able to document the third. Nonetheless, the School District has "acknowledge[d] that there is a third year out there." Admin. Record Ex. 8, Transcript of Due Process Hearing, September 25, 2007, at 22. See also Joint Stip. at ¶ 14. The Special Education Due Process Appeals Review Panel awarded the first documented year on July 7, 1995. Admin. Record Ex. 11, Ex. A attached to Ex. 11 at 5. At a due process hearing on September 4, 2001, the parties placed on the record their agreement that Ferren was entitled to another year of compensatory education. Admin. Record Ex. 11, Ex. B attached to Ex. 11 at 18-39. For this second year, the parties agreed that "one year will be added to Ferren's eligibility for Special Education, with the understanding that the District will assume responsibility for this relief." Id. at 20. The parties did not define the key terms "eligibility" or "responsibility." In addition, the School District was to "identify one or two persons who have the authority to authorize payments or otherwise commit District resources needed for the implementation of [the] agreement." Id. at 30. On September 7, 2006, the School District stated that "we have agreed that Ferren is entitled to 3 additional years of education beyond her 21st birthday." Admin. Record Ex. 11, Ex. F attached to Ex. 11 at 1. Again, the School District did not define the phrase "additional years of education." More recently, the School District wrote that "Ferren has received compensatory education in the form of a substantial trust fund and three (3) years of compensatory education beyond her 21st birthday." Admin. Record Ex. 13, Letter from the School District's Assistant General Counsel to Hearing Officer Daniel Myers, August 30, 2007, at 2 (emphasis added).
Ferren attended the Elwyn Davidson School ("Elwyn"), an Approved Private School, for three school years beginning in 2004 and ending in 2007. Joint Stip. at ¶ 9. Ferren turned twenty-one on October 15, 2006, so the 2006-07 school year was the last year she attended Elwyn pursuant to an IEP from the School District and Notice of Recommended Educational Placement from her parents. Id. at ¶¶ 9, 13. While Ferren was at Elwyn, the School District provided her transportation. Elwyn also supplied a "basic functional academic program as well as transition activities." Admin. Record Ex. 8 at 65. Elwyn also provided services to Ferren for speech, occupational therapy, and a "consult" for physical therapy. Id. For a student under twenty-one years of age, the student's school district pays 40% of Elwyn's tuition, and the state Department of Education pays the balance. Id. at 46. See also Joint Stip. at ¶ 10. The school districts of out-of-state students pay 100% of the tuition. Admin. Record Ex. 8 at 66. Similarly, if Ferren attended Elwyn for compensatory education, the School District would pay 100% of her tuition. Id. at 69; Admin. Record Ex. 11, Ex. G attached to Ex. 11 at 1. Elwyn does not "accept private pay students because [it is] not a private school." Admin. Record Ex. 8 at 46-47.
Under the terms of its license, Elwyn generally stops serving students after the school year in which they turn twenty-one. However, Elwyn could serve Ferren during the time of her compensatory education, even though she is over twenty-one, "as long as she is still considered a student in the school program involved with the School District . . . but not independent of that." Id. at 48-49. The School District "believes that Elwyn provided an appropriate education" to Ferren and "that it is capable of providing her with appropriate compensatory education in the future." Joint Stip. at ¶ 25. Elwyn's corporate parent also provides services to people with special needs from "birth to geriatrics." Id. at ¶ 11. Ferren would not need an IEP to enroll in one of the adult programs, but those programs do not "provide any academics." Admin. Record Ex. 8 at 62-63.
All of Elwyn's students have an IEP, and Elwyn can do much of the work that underlies an IEP, including biannual reevaluation reports, IEP team meetings, and drafting the IEP itself. Admin. Record Ex. 8 at 53, Joint Stip. at ¶ 12. When Elwyn drafts an IEP the School District is not involved in the drafting. Admin. Record Ex. 8 at 51. However, parents, the School District, and Elwyn staff meet to discuss the IEP and work together as a team to "determine that it's an appropriate IEP to implement." Id. at 38. Because Elwyn is not a Local Educational Agency ("LEA"), it requires its students' home school districts to sign the IEP and serve as LEA. Joint Stip. at ¶ 12; Admin. Record Ex. 8 at 39-40. Under this arrangement, it is Elwyn's understanding that "[t]he school district is the responsible agency" for ensuring that the IEP is implemented. Admin. Record Ex. 8 at 46. On the other hand, the School District believes "that with respect to the compensatory education due to Ferren that it is the parents' burden to select the compensatory education and in essence just send the bill to the District." Id. at 88.
The School District's attorney opined that it is "absurd" for it to remain liable for implementing an IEP for students after they turn twenty-one. Id. at 136. But an Elwyn representative testified at Ferren's due process hearing that the School District had provided an IEP to one Elwyn student for a "compensatory award year" beyond the last school year in which the IDEA entitled him to an IEP. Id. at 53-54, 69. The School District's representative did "not have direct knowledge of that student." Id. at 74. He could not find an IEP for this child on the School District's computer network, but admitted that "it is possible that a student could have an IEP if it is part of a settlement agreement." Id. at 73. There is no evidence in the record to counteract the unequivocal testimony of the Elwyn representative on this point. Thus, we can only conclude that the School District has provided an IEP for a compensatory education student at Elwyn who is beyond the IDEA's protections.
D. History of the Current Dispute
On September 6, 2006, shortly before Ferren's twenty-first birthday that October, the School District agreed to schedule her graduation for 2010 (three years beyond the school year in which she celebrated her twenty-first birthday). Joint Stip. at ¶ 15. But the School District later abandoned this promise in a January 3, 2007 letter in which it informed Elwyn that Ferren should graduate in the spring of 2007 because she was over twenty-one years old and no longer eligible for an IEP prescribing FAPE under the IDEA. Id. at ¶ 16; Admin. Record Ex. 10, Ex. P-1 attached to Ex. 10. On January 22, 2007, Elwyn informed the School District that it would not graduate Ferren unless the School District confirmed that it had satisfied its compensatory education obligations toward Ferren. Joint Stip. at ¶ 18. Elwyn received no response from the School District, and Ferren did not graduate that year. Id. at ¶ 18; Admin. Record Ex. 8 at 42.
In June of 2007, Elwyn informed the School District that Ferren did not graduate and that Elwyn would provide compensatory education to her if the School District agreed to pay the entire cost of services. On August 27, 2007, Elwyn then demanded that the School District develop an IEP for Ferren that "'recognizes that [Ferren] is receiving compensatory education services as a part of FAPE.'" Joint Stip. at ¶ 21 (alteration in original). At that time, Elwyn also insisted that the School District remain as LEA and award a diploma to Ferren when the compensatory education ended in 2010. Id. Because Ferren's parents are not capable of developing a compensatory education program themselves, they asked the School District to develop and sign an IEP for Ferren so that she could continue to attend Elwyn. Id. at ¶ 23. Although the School District is willing to honor its obligation to provide funding for three years of compensatory education, it refuses to develop or sign Ferren's IEP or serve as LEA. Id. at ¶ 24.
On June 13, 2007, the Plaintiffs requested a special education due process hearing. Id. at ¶ 26. A Hearing Officer denied the Plaintiffs' request to treat Ferren's most recent IEP as pendent for the purposes of 20 U.S.C. § 1415(j), and in October of 2007 a Pennsylvania Special Education Appeals Panel denied Plaintiffs' appeal of this decision because it was interlocutory. Id. at ¶¶ 27, 27A. After the due process hearing on September 25, 2007, the Hearing Officer issued an opinion and concluded that the School District was not required to provide an IEP for Ferren during her three years of compensatory education. Id. at ¶¶ 28, 29. The Pennsylvania Special Education Appeals Panel affirmed the Hearing Officer's decision in a November 23, 2007 opinion. Id. at ¶ 30.
Because of this ongoing dispute, Ferren received no compensatory education during the 2007-08 school year. Id. at ¶ 26. At the hearing on September 25, 2007, the School District noted that "little or none of the funds have been spent . . . nor has the three years been provided in any way, in any meaningful way." Admin. Record Ex. 8 at 98. The record does not reflect whether Ferren is in any kind of educational program during the current school year, and there is no evidence regarding the effects of the gap in Ferren's education. We understand that such a gap has the potential to cause significant harm considering the degree of her disabilities and her "significant regression in skill acquisition." Joint Stip. at ¶ 8. The record only contains predictions about what might happen to Ferren, and we cannot accept those predictions as fact. See, e.g., Admin. Record Ex. 8 at 110-11 (Plaintiffs' expert testified that without individualized instruction he "would expect that [Ferren] would fail to progress and to continue to have very extensive needs for care, for oversight, for living.").
The IDEA requires school districts that receive federal funding to provide FAPE to children between the ages of three and twenty-one. 20 U.S.C. § 1412(a)(1)(A). As happened in this case, when families and schools disagree about whether a child's school district is providing FAPE, the affected parents or children may file a complaint, participate in an impartial due process hearing, and appeal the decision of the due process hearing officer to the state educational agency. 20 U.S.C. § 1415(f-g). Any party aggrieved by the outcome of this process may bring an action in state or federal court, as Ferren and her parents did here. 20 U.S.C. § 1415(i)(2).
The parties agree that the School District owes Ferren three years of compensatory education, and the School District has already set aside the money to pay for Ferren's tuition at Elwyn for three years. In their motions, the parties ask us to resolve two narrow questions: (1) whether Ferren's placement at Elwyn should be considered "pendent" for the duration of these proceedings; and (2) whether the ...