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Basics 6:
The IEP my child has is not adequate and I have been trying to get the school to make necessary changes. They have not done so. Can I obtain reimbursement from the local school district if I place my son in a private school?
Comment:
Generally, if parents place their child in a private school they are not entitled to have the local education agency pay for that education. If, however, ”the court or hearing officer finds that the agency had not made a free appropriate public education [FAPE] available to the child in a timely manner prior to that enrollment”, it may require the agency to reimburse the parents for the cost of that enrollment. Individuals with Disabilities Education Act (“IDEA”)1. A FAPE "consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction."2.

There are actually two things that must be shown for the parents to be compensated for the costs of the private school. First, the hearing officer or court must find that the school district violated IDEA; that it failed to provide the child with a FAPE. The failure to have an appropriate IEP, or to implement a material or significant portion of the IEP, can amount to a denial of a FAPE. Second, the hearing officer or court must also find that the education provided in the private placement was appropriate; that it was reasonably calculated to provide an educational benefit. It does not have to meet all of the unique educational needs of the child, as long as it “provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”3

Both criteria must be met; that the local district failed to provide a FAPE and that the alternative educational setting in which the child was placed was appropriate.4

The IDEA also requires that the child have “previously received special education or related services under the [school’s] authority” before the parents can be compensated for the educational costs incurred for privately placing the child. §1412(a)(10)(C)(ii). Scenario: The child is in public school and the parents decide that he needs special education. They also believe that a particular private school will better meet their child’s educational needs. They then enroll their child in that private school and request that the school district reimburse them for the educational costs. The school district will undoubtedly say “NO”, you have to have been in special education here first as required by the law. That is true but then the Supreme Court concluded “that IDEA authorizes [tuition] reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school."5.

Do not assume that you can simply avoid the special education structure in the local school, place your child in a private school and expect reimbursement for the tuition. In Forest Grove the parents sought but were denied special education services for their child. The Court stated: “a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” This would not be so if the parents did not even seek an IEP.

These are the broad strokes involved in obtaining reimbursement for the unilateral placement of your child in a private educational setting.  There are also minor strokes that must be followed to obtain such reimbursement. At the most recent IEP meeting that you attended prior to removal of your child from the public school you must inform the IEP team of your concerns and indicate your intent to enroll your child in a private school at public expense. OR 10 business days prior to the removal of your child you must give this same information to the local school district.6


1 10 USC §1412(a)(10)(C)(ii)
2 Board of Educ. v. Rowley, 458 U.S. 176 (1982)
3 Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006)
4 School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370 (1985); Florence County School District Four v. Carter, 510 U.S. 7 (1993)
5 Forest Grove School District v. T.A., 557 U.S. 2484 (2009)
6 10 USC §1412(a)(10)(C)(iii)