Look Before You Leap:

Considerations before making placement changes for your child with a disability

Part of a “Common Pitfalls” Series

            Choosing a school for your child with special needs can be incredibly difficult. Weighing options of cost, programs, and services can give even the most organized and thoughtful parents headaches and heart burn! On top of that, placement decisions come with a minefield of hidden legal issues that parents need to be aware of. Frequently, attorneys at McAndrews Law Offices meet parents who have made placement decisions without understanding some of the hidden legal repercussions.

            Three of the most common placement mistakes we see parents make pertain to private placement, sending students to out-of-boundary public schools, and withdrawal from school.

            Private Placement: Sometimes, a desperate parent fed up with trying to work things out with the school district transfers his or her student to a private school without notice to the district. This can hurt a parent seeking tuition reimbursement from the district at a later time. Generally speaking, to obtain reimbursement for tuition, (a) the district must not have provided an appropriate educational program, (b) the parents must choose an appropriate program, and (c) the equities must weigh in the parents’ favor. This last element requires a finding of fairness, and oftentimes can tilt toward parents if they give the district written notice – typically ten business days prior to removing the child from the district – that they are rejecting the district’s proposed placement, stating the parents’ concerns, and stating the parents’ plan to enroll the student in a private school at public expense.

            Out-of-boundary: Some parents try to send their child to an out-of-boundary public school by using a second address or the address of a family member, where they and the child do not really live. Not only can this result in substantial fines and criminal penalties in some states, it can also interfere with or completely impede your ability to enforce your child’s special education rights. Even if you own a residence and pay property taxes within the boundaries of the school, unless your child actually resides there – typically tested by where he or she sleeps most nights – generally, you cannot legally send your student there without agreement by the school district.  However, in unique circumstances, such as if your child lives with a relative, you are homeless, or you have a shared custody arrangement, you should consult your state’s residency laws to ensure that you are sending the child to the appropriate school.

            Withdrawal: Frustrated parents who cannot afford a private school sometimes resort to a different option – completely withdrawing their student from school. This, too, can come with unintended and negative legal consequences. Parents who withdraw their child from the public school district are more limited in the legal remedies they can seek from the district. Parents who withdraw to homeschool their child have to be careful to meet their state’s requirements for homeschool curriculum and record keeping. Parents who withdraw their child from a public charter school must know their child may not be entitled to re-enroll in the local public school district – in Delaware, for example, a student generally may not re-enroll in the district in their first year of attendance at the charter school, with some narrow exceptions.

            Placement considerations can be particularly tense for parents of children with special needs. Taking the time to carefully consider all options and possible repercussions, and seeking legal advice where appropriate, can help avoid unintended negative consequences down the line.

by Caitlin McAndrews, Esq. McAndrews Law Offices, P.C.