QUESTION: I disagree with
the proposed IEP. I expect to sign the form in disagreement and
request a due process hearing to resolve the dispute. Until the
hearing is resolved, I want to withdraw my child from her current
school and place her in an alternative program. What are the
ramifications of my action?
As with many issues facing parents of special needs children,
there are legal and practical consequences to all actions a parent
elects to take or not take. Without knowing facts that can only be
obtained after a detailed review of the child's school records, and an
in-person interview, I can only respond in general with some basic
general principals that may help you guide your decision process.
First, a parent with legal custody has the inherent right to decide
how and where their child will be educated. While all states have
compulsory attendance laws generally requiring attendance from 6 to 16
years of age, those laws can be satisfied by the child attending a
public school, a private school, a religious school or an approved
home school program.
For many parents the more significant question may be who will pay for
the private schooling. Generally, the parent starts paying the tuition
and then seeks reimbursement via a due process hearing. If a parent
will be requesting reimbursement from the hearing officer under IDEA
for private school expenses, the following section of the IDEA
regulations are applicable. Pay particular attention to the notice
requirements of 300.403(d)(1)(i) and (ii):
§300.403 Placement of children by parents if FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost of
education, including special education and related services, of a
child with a disability at a private school or facility if that agency
made FAPE available to the child and the parents elected to place the
child in a private school or facility. However, the public agency
shall include that child in the population whose needs are addressed
consistent with §§300.450-300.462.
(b) Disagreements about FAPE. Disagreements between a parent and a
public agency regarding the availability of a program appropriate for
the child, and the question of financial responsibility, are subject
to the due process procedures of §§300.500-300.517.
(c) Reimbursement for private school placement. If the parents of a
child with a disability, who previously received special education and
related services under the authority of a public agency, enroll the
child in a private preschool, elementary, or secondary school without
the consent of or referral by the public agency, a court or a hearing
officer may require the agency to reimburse the parents for the cost
of that enrollment if the court or hearing officer finds that the
agency had not made FAPE available to the child in a timely manner
prior to that enrollment and that the private placement is
appropriate. A parental placement may be found to be appropriate by a
hearing officer or a court even if it does not meet the State
standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described
in paragraph (c) of this section may be reduced or denied -
(1) If ?
(i) At the most recent IEP meeting that the parents attended prior to
removal of the child from the public school, the parents did not
inform the IEP team that they were rejecting the placement proposed by
the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
(2) If, prior to the parents' removal of the child from the public
school, the public agency informed the parents, through the notice
requirements described in §300.503(a)(1), of its intent to evaluate
the child (including a statement of the purpose of the evaluation that
was appropriate and reasonable), but the parents did not make the
child available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement may not be reduced
or denied for failure to provide the notice if ?
(1) The parent is illiterate and cannot write in English;
(2) Compliance with paragraph (d)(1) of this section would likely
result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing the notice; or
(4) The parents had not received notice, pursuant to section 615 of
the Act, of the notice requirement in paragraph (d)(1) of this
(Authority: 20 U.S.C. 1412(a)(10)(C))
Therefore, at the due process hearing the parent will need to prove to
a local hearing officer's satisfaction (and possibly a state review
officer and judge if either side appeals the decision to court) that
the school's plan did not provide the student with a FAPE. From the
school's perspective the expense that is at risk can be significant,
and far exceed what they are reimbursed from the state and federal
government so any expense on paying their attorneys to contest the
parent may be money well spent.
Given the nature of these hearings with the denial of FAPE the main
issues and related issues such as the appropriate "stay put"
placement, the availability of the child for school evaluations, the
nature of the private placement, etc., these hearing tend to be
multi-day hearings with expert testimony offered by both sides. In
addition, given the possibility of having private school tuition paid
for by the resident district, many parents obtain experienced legal
counsel to organize and present favorable evidence, and rebut the
school's witnesses and evidence.
Hope this helps your understanding.
John F. Brower, JD
Education Law Center
Law Center, PLLC · 810-227-9850 ·
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