Wednesday, July 1, 2009

Private Placements Part 1: Notice of Unilateral Placement

Parents may obtain reimbursement for the costs of private school placement if the Court or Hearing Officer finds that the school district failed to make a free appropriate public education available to the student in a timely manner prior to the student's enrollment in the private school, and that the private school placement was appropriate. Parents considering this option need to consider the notice requirements under the IDEIA. Notice to the school district will be one of the many factors the Court or Hearing Officer will consider in determining if reimbursement is appropriate, and if there should be any reduction in the amount to be reimbursed.


Under the IDEIA, reimbursement can be reduced or denied if:
(1) At the most recent IEP meeting parents attended prior to removal from the school district, parents did not inform the IEP team that they were rejecting the placement proposed by the school district, state their concerns, and state their intent to enroll their child in private school at public expense;
OR
(2) At least 10 business days prior to the removal, parents did not give written notice to the school district of the fact that they reject the proposed placement by the school district, their concerns, and their intent to enroll their child in private school at public expense.

See 34 C.F.R. 300.148(d)

Notice to the school district is one consideration under the equitable factors that may affect the outcome of unilateral placement cases. The basic idea is that the parent needs to let the school district know about their concerns, their disagreement with the offered placement, and their intent to enroll the child elsewhere. This is based upon a fairness principal - if you are ultimately expecting that the District is going to reimburse you for that placement, it is only fair that you put them on notice of that intention and expectation! Although their are exceptions to this rule and certainly different interpretations and findings, parents in general need to provide the District notice and comply with this requirement in order to preserve their right to seek reimbursement. Ultimately, failure to give notice at the IEP or in writing may result in a finding that parents were withholding information and thereby acting in bad faith.

At the IEP Meeting

Parents can give notice at the IEP meeting, but should be careful not to seem as though they came into the meeting with a firm committment to enrolling their student in the private school and unwillingness to consider what the District has to offer. If notice is being given at the IEP meeting, parents should

1. Carefully articulate their concerns about the school district's offer AFTER the school district has had the opportunity to develop the IEP and make an offer of placement. Make sure to ask questions and participate in the discussion about the placement, and then provide clear information to show that you considered the offered placement but did not find it to be appropriate.

2. Clearly state that you are rejecting the school district's offered placement because it is not appropriate, and not because you simply prefer a private placement.

3. Clearly state that you intend to enroll the student in a private placement. Indicate why you think this placement is appropriate. State that you will want the District to reimburse for this placement because you believe it is necessary to provide your child with a FAPE.

4. Don't fall into a "parentally placed private student" trap. Many times the District will try to get you to sign a document that states that you have been offered a FAPE and choose to enroll your child in a private placement anyway. The District will then use this to identify your child as a privately placed student. Emphasize that you are not rejecting the District's offer because it is not FAPE, and that therefore you will not agree to designate your child as a privately placed student because you believe the District still has an obligation to him/her in terms of his educational program.

Written Notice

Parents can also give notice in writing directly to the school district. If written notice is being provided, parents should

1. Clearly state in writing that they disagree with the District's offered placement / the current placement that the child is in. The letter should state that the parents no longer feel this placement is appropriate.

2. Briefly state concerns regarding the placement and other issues as appropriate. Give reasons why the current placement is not appropriate.

3. Provide a date that the child will be removed from the district's program and the date upon which unilateral placement will begin. Remember that the notice must be given 10 business days prior to the removal from the district's program.

4. Specifically state that the parent will be seeking reimbursement for this placement. Parents should specify that they believe that the unilateral placement is appropriate and necessary to provide the student with a FAPE.

Why Not Do Both?

It is not a bad idea to provide notice in both ways. Although the strategy for a unilateral placement will vary on a case by case basis, remember that the ultimate goal is to make sure you give the District a heads up about the disagreement and the unilateral placement and allow them the opportunity to respond. If there is an IEP meeting happening, and you already know that you disagree with the District's placement and are seeking a different placement, you can give notice at that time, and then follow it up in writing. Sometimes, parents may know that they disagree with what the district is offering but don't know whether they are going to unilaterally place the child. You could still give notice that you disagree, and even that you are going to be seeking an alternative placement, and then follow it up with specific details in the notice letter. Remember, these facts will all be considered under the principles of "equity," or fairness, so think of it in terms of how you can be fair to the District by giving them notice rather than withholding information.

Ultimately, notice is just one factor among many in these cases, but unfortunately many unilateral placement cases do not come out in favor of the parents if the parents failed to give proper notice or withheld information from the District. For specific information on a case by case basis, it would be advisable for you to seek guidance from an attorney or experienced educational advocate as you go through this process.

3 comments:

  1. wow!!! Thanks for the information
    My child is wheelchair bound and visually impaired. The school district has left him unattended in a non ADA compliant doorway to fall and seriously injure himself...they now deem him "cured" of his disability so he does not need O&M..I am seeking private placement. You blog was a real gift. Thank you!!

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  2. I'm so glad you found this information helpful! Good luck with your son's case!

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  3. As a special educator, I find this blog to be very helpful in talking with parents about private placement.

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