FAQ: Private School Placement at Public Expense for Children with Disabilities
These FAQ’s are an attempt to simplify the law and respond to questions that parents often express or need to know. Parents should be mindful that this publication is intended to provide broad, general information about the law and is not intended to provide legal advice. Before applying this information to a specific legal problem, parents are urged to seek advice from an attorney.
Must I inform the public school before I place my son in a private school?
How do I recover the private school tuition?
What are the requirements for getting tuition reimbursement?
How do we prepare for mediation?
My son has a disability and is not making progress in school. He needs to go to a special school but my school district won’t agree to send him there. What can I do?
Your school district must provide a free appropriate public education (FAPE) to each disabled child eligible under the Individuals with Disabilities Education Act (IDEA), the federal law that governs special education in Ohio. If the school fails to do this, you may enroll your child in a private school and seek tuition reimbursement from the school district. This private school placement is called a “unilateral placement.”
What is “FAPE?”
FAPE stands for “free, appropriate public education,” that consists of special education and related services tailored to meet each child’s unique needs in areas such as academics, social skills, adaptive skill, and behavior. FAPE must be delivered through an Individualized Education Program (IEP), which is developed by an IEP team that includes parents, educators and other specialists. The IEP must have measurable goals and objectives and must provide sufficient services to allow the child to make meaningful “educational” progress in all areas of disability and not just academics.
Must I inform the public school before I place my son in a private school?
Yes; if your child is attending a public school program, you must tell the school district that you are making a unilateral placement before you remove your son from the public school program. You can do this either by delivering a letter to the school superintendent at least 10 business days before the removal or by giving notice at the last IEP meeting held before you remove your child from the public school. It is wise to give written notice at the IEP meeting so that there will be a record. The notice must tell the school district that you are rejecting the IEP because it does not provide FAPE. In the notice, you also must state your concerns with the public school’s program and placement and your intent to enroll your child in the private school at public expense.
What if our child has never attended a public school or received special education services? Can we still make the unilateral placement and recover tuition?
In some situations, yes. In a recent Supreme Court case, Forest Grove School District v. T.A., parents made a unilateral placement of their child after the District unreasonably failed to identify him as a child with a disability during his years of attendance in the public school. The U.S. Supreme Court held that IDEA allows reimbursement for unilateral placements in these circumstances, noting that it would be “strange” for IDEA to “provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.” The Court’s reasoning appears to apply to unilateral placements on behalf of children who have never attended school in the district and at least one decision of the U. S. Court of Appeals for the Second Circuit (Connecticut, New York and Vermont) applied the unilateral placement rules to a child who had never been educated in the District. Pending clarification of the law in our own circuit (Sixth Circuit) or by the Supreme Court, approval of unilateral placements in such cases cannot be assured, but will likely depend upon whether you have given the school district a chance to evaluate your child and offer an IEP, whether the school district has failed to offer FAPE, and whether your child makes progress in the private school.
How do I recover the private school tuition?
Typically, you or your attorney must file a request for a “due process” hearing with your school superintendent and the Ohio Department of Education to recover the tuition. Your due process hearing request can include a request for mediation, since most due process cases are settled in mediation.
What are the requirements for getting tuition reimbursement?
There are two basic requirements for getting tuition reimbursement. First, the school district must have failed to offer or provide your child FAPE. Second, the special private school must be appropriate for your child. This means it must be either a specialized school or one that provides at least some of the specialized services he needs. The unilateral placement must be reasonably calculated to allow your child to make progress. Practically speaking, your child must make meaningful progress in the special school in order for you to recover the cost of tuition. For this reason, it would be wise to allow your child a period of time to progress in the private school before you file due process for tuition reimbursement.
How do we prepare for mediation?
First, you should involve an independent expert in your decision to make a “unilateral placement” to a private school. Also, once you have placed your child in a private school, you are likelier to settle if you have good records showing that your child did not make appropriate progress in the public school district, but that he did progress in the unilateral placement (private school). It is wise to keep records of your child’s behaviors at home and in the community both before and after the placement change.
