Parents of students attending a private school as a pendent placement during “stay- put” have been entitled to receive tuition reimbursement through the end of the appeals process.

Now, according to the Third Circuit Court of Appeals, those parents can recoup attorney fees as a prevailing party in an action incurred to compel reimbursement of stay-put services.

In an issue of first impression, the court held late last month that parents are entitled to an award of prevailing party attorney fees when they secure backward-looking tuition reimbursement for a stay-put private school placement during a pending appeal. Following up on its prior decision establishing that the Individuals with Disabilities Education Act’s stay-put provision requires that a school district maintain a student’s then-current educational program through the end of the entire appeals process, and not just through a decision by the district court, the court will now apply prevailing-party status in some stay-put disputes.

In determining that the parents were a prevailing-party for the purpose of an award of fees, the court distinguished between temporary, forward-looking, stay-put relief that does not result in an award of prevailing party fees, and the backward-looking compensatory stay-put relief that was at issue. The case was remanded to the district court for determination of an appropriate fee award.

The decision to award fees in this matter comes years after the parents first unilaterally placed their child in a private school and sought due process to challenge the school district’s offer of a free and appropriate public education (FAPE). The Hearing Officer sided with the parents and determined that the individualize education program offered did not constitute FAPE. That established the private school as the student’s pendent placement as the matter worked its way through the courts on appeal over the course of the next several years.

This latest decision notes that if the child’s physical right to “stay-put” is at issue and parents obtain temporary forward-looking injunctive relief, an award of attorneys’ fees is not available because there is no determination “on the merits.”

However, if the backward-looking right to reimbursement or compensatory education is at issue, the action requires an independent determination on the merits. If successful in such a challenge, the fee shifting provisions would apply. Based on this analysis, the court determined the parents prevailed on their claim for tuition reimbursement for the stay-put period entitling them to an award of attorneys’ fees as a prevailing party.

It will be important moving forward for school districts to have a clear understanding of the scope of responsibility in connection with a student’s stay-put status. This decision clearly expands the universe of exposure for fee awards.