We have been seeing an increased number of due process hearing requests involving demands for reimbursement for unilateral private school placement by parents. The stakes in these situations are often high, particularly if the private placement selected by the parents is a residential program. Before deciding on a course of action, it is imperative to understand the underlying legal requirements.

The IDEA

The Individuals with Disabilities Education Act (IDEA) provides that if parents unilaterally enroll their child in a private school, a court or hearing officer may require the school district to reimburse the parents for the cost of the private school tuition if two conditions are met:

1. The school district failed to provide a free appropriate public education (FAPE) to the child in a timely manner prior to that enrollment; and
2. The private placement is appropriate.

Even if those two conditions are met, a court or hearing officer has the discretion to reduce or altogether deny the tuition reimbursement if any of the following occur:

1. The most recent IEP Team meeting that the parents attended prior to removing their child from the public school, the parents did not inform the IEP Team that they were rejecting the placement offer and were intending to unilaterally enroll their child in a private school at the district’s expense;
2. At least 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 school district of the same;
3. Prior to the parents’ removal of the child from the public school, the school district informed the parents of its intent to evaluate the child, but the parents did not make the child available for the evaluation; and
4. The court or hearing officer finds the parents’ actions were unreasonable.

Notwithstanding the above, the regulations permit and/or require the court or hearing officer not to reduce or deny the reimbursement in certain limited circumstances, including where the school prevented the parents from providing the required notice. See 34 CFR § 300.148.

Practice Tips

1. If you receive notice from parents of their intent to enroll their child in a private school at the district’s expense, consider taking the following steps:
   • Schedule an IEP Team meeting to discuss the parents’ concerns and review/revise the IEP and placement offer as appropriate.
   • In advance of the IEP Team meeting:
     • Ask for information from the parents regarding the nature of their concerns (if not already known) and regarding the private school or education program in which they intend to enroll their child.
     • Schedule a preparation session for the District IEP Team Members. Prepare for the IEP Team meeting, without engaging in predetermination.
   • Consider mediation.
2. Do not allow the parents’ conduct to delay or prevent the district from holding an IEP Team meeting. See Grafton Sch. Dist. v. JL, 120 LRP 20299 (E.D. Wis. 07/08/20) (“Finally, as the ALJ correctly noted, [the parent’s] non-participation in the IEP process did not prevent the District from preparing a final IEP in August 2018; the District could have and should have scheduled another IEP team meeting, with or without [the parent’s] input . . . For these reasons, I conclude that the ALJ was correct to consider only what was within the four corners of the draft IEP in concluding that the District had not offered [the student] a FAPE for the 2018-19 school year.”)
3. Be aware that a private placement selected by the parents is not required to meet state standards for public school districts in order to qualify as an “appropriate” placement for the purposes of tuition reimbursement. See Madison Bd. of Educ. V. S.S. and D.S., 77 IDELR 99 (D.N.J. 2020) (rejecting the school district’s arguments that the private 1:1 ABA therapy program was not appropriate because it was not accredited by the state and was not the student’s LRE).
4. Consider whether any additional evaluations are appropriate. If the parents obtained an outside evaluation leading up to the placement dispute, ask for a copy of the outside evaluation report and for permission to speak with the outside evaluator.
5. During the COVID-19 pandemic, reconvene the IEP Team as appropriate to discuss parent concerns regarding FAPE while virtual or hybrid models are in place to head off unilateral placement in a private program providing in-person instruction and services.
6. Continue to review ongoing DPI guidance as to FAPE requirements and procedural issues during the ongoing pandemic in order to avoid missteps.

If you have any questions about this Legal Update or need assistance navigating a special education issue,
please contact Alana Leffler at (262) 364-0267 or aleffler@buelowvetter.com, Gary Ruesch at
gruesch@buelowvetter.com, or your Buelow Vetter attorney.