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Ask the Attorney: Questions and Answers (back to Ask the Attorney)
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?

ANSWER:  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 section;

(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 section.

(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

Education Law Center, PLLC 810-227-9850 

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