By: Lauren M. O’Connell Mahler, Esq.
Delaware Staff Attorney, McAndrews Law Offices, P.C.
Many parents of children with disabilities have faced the difficult choice of whether to place their child in the public school system or pay for their child to attend a private special education school. Private special education schools can offer many benefits, such as smaller class sizes, research-based programs, and uniquely trained staff. However, private school tuition can also be costly. As the parent of a private school student, you may have already come to the conclusion that your local public school district’s program does not work for your child. However, you may not be aware that, in certain circumstances, you could potentially be entitled to payment or reimbursement for the cost of your child’s private tuition from your school district.
Under the Individuals with Disabilities Education Act (IDEA), the federal law that governs special education, public school districts and charter schools have a duty to ensure that students with disabilities receive a Free and Appropriate Public Education (FAPE) through an Individualized Education Program (IEP). In order for a child with a disability to receive a FAPE, sometimes it may be necessary for a child to attend a private school at the school district’s expense either because the district cannot provide the child a FAPE within their public school programs or because the district has failed to offer the child a FAPE.
How can a public school district be required to pay for or reimburse a family for a child’s private special education schooling? This typically happens in one of two ways:
- Private Placement: the school district voluntarily offers to place the child in a private school via the child’s IEP.
- Tuition Reimbursement: parents unilaterally place the child in a private school and then seek tuition reimbursement via a due process hearing.
How do you know if it’s possible to obtain your local school district’s funding for your child’s private tuition under one of these two scenarios? Unfortunately, there is no easy answer to that question. Whether a child is entitled to private school placement or tuition reimbursement must be evaluated on a case-by-case basis because a FAPE is different for each child, and largely depends on each child’s unique needs. What is appropriate for one child may not be appropriate for another.
However, generally, for Private Placement to apply, the school district must have already found your child eligible for an IEP. If the District determines that it cannot provide FAPE and serve your child’s unique needs appropriately within the public school district’s available programs, the District may offer to place your child in a private school. The private school would then implement the IEP. In this situation, the District would continue to remain involved in your child’s educational program while your child is attending the private school, and would continue to hold IEP meetings, conduct evaluations, and monitor your child’s educational progress.
For Tuition Reimbursement to apply, the District may have found your child ineligible for an IEP altogether or may have found your child eligible for an IEP, but offered your child a program and placement that was inappropriate. If you chose to enroll your child in private school as a result of either of these disagreements with your local public school district, you could request a due process hearing to seek private school tuition reimbursement. However, in order to successfully obtain tuition reimbursement at a due process hearing, the hearing officers would have to find that your child’s case satisfies the following three requirements:
- The school district failed to offer your child an appropriate IEP (that is, a FAPE) in a timely fashion;
- The private school that you enrolled your child in is appropriate to meet your child’s needs under IDEA; and
- Providing tuition reimbursement to you would be equitable and fair under the circumstances (for example, you haven’t engaged in any unreasonable conduct which would potentially warrant the court decreasing your award of tuition reimbursement).
Again, what is “appropriate” is different for each individual child. There is no bright line test. To help determine what kind of educational program and placement is appropriate for your child, it is best to have your child comprehensively evaluated by a certified school psychologist.
If you are considering pursuing your public school district for private school tuition reimbursement, your chances of success at a due process hearing are substantially increased by having an attorney. A due process hearing is much like a regular civil trial, and the school district will be represented by the district’s own legal counsel. It is also important to remember that the statute of limitations for requesting a due process hearing under IDEA is generally understood to be two years, with some exceptions.
The information within this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. For more information, please visit www.mcandrewslaw.com or call (302) 380-4975.