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Question:
My question is how do I get the school district to pay
for my learning disabled son to go to a private school, when he is not
making progress at the school he is in?
Answer:
Under IDEA the public schools have an
obligation to provide an eligible child with a free appropriate public
education (FAPE). If and only if, they cannot provide a FAPE will
reimbursement for a private school placement become an issue. As
there is frequently a significant difference between what a public
school receives in taxpayer dollars to educate each IDEA eligible
student and what a private school charges in tuition and related
expenses, public schools are understandably reluctant to willingly pay
for a private placement. In reaction to the public school’s concerns
Congress has amended IDEA to make it difficult (but not impossible)
for a parent to prevail on a claim for reimbursement for a private
school placement.
If you review the federal court
cases and the state’s due process hearing decisions
I believe you will see that a majority of them deal with a parent’s
request for reimbursement for a private placement. When parents are
successful, they have given the public school adequate notice in
writing and generally before an IEP Team that it is their position
that the public school is not providing their child a FAPE and their
intent to remove their child from the public school and privately
place their child. This has to be done at least 10 business days
before the child is removed. In the 6th Circuit, while
the same statutory
requirements of free appropriate public education (FAPE) do not apply
to private school placements, parents will not be entitled to
reimbursement for such placement unless it offers their disabled
child’s education is otherwise proper under IDEA. Generally that
means the private school must provide some sort
of special education type services.
In the end,
the basic principle is that each year
the public school is offered a full opportunity to provide an IDEA
eligible student with a FAPE. If they fail in that responsibility,
then a private school placement is a possibility. However, the parent
expecting reimbursement has to strictly follow the requirements of
IDEA. Then they may need to prove in a hearing, using expert
testimony and evaluation evidence that their child is capable of, but
not making meaningful educational progress. Alternatively, that the
education offered to their child in the proposed IEP does not provide
a FAPE.
Just
from this brief review, you can see this is a complex area of the
law. One excellent resource for information in this area is from
attorney Pete Wright’s web site at
www.wrightslaw.com. He was the attorney that successfully
represented the parents in the Carter case. That case is the
precedent setting US Supreme Court case on parental reimbursement for
private school placement. In the future, when No Child Left Behind
takes full effect, there also may be opportunities for IDEA eligible
children in a “failing school” to receive some type of voucher
assistance to attend another school, including private schools.
John Brower, JD
Education Law Center, PLLC
Education Law Center, PLLC · 810-227-9850
·
www.michedlawcenter.com
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