THE OBLIGATION OF A SCHOOL DISTRICT TO EVALUATE AND OFFER AN EDUCATIONAL PROGRAM TO A NON-ENROLLED STUDENT

Families of children with disabilities may elect to enroll such children in private schools.  With some minor exceptions, private schools do not have an obligation to provide students with services under the Individuals with Disabilities Education Act (“IDEA”), including to either perform a psychoeducational evaluation of the student, or to provide the student with an Individualized Educational Program (“IEP”).  They also do not have the obligation, as do public schools, of offering to children with disabilities a Free Appropriate Public Education (“FAPE”) under IDEA and state law.

 

Therefore, parents who have enrolled their children in a private school may consider enrolling their child in the local school district in order to increase the chances of the student receiving an appropriate education, and, unlike a private school, at no cost.  However, such parents are often reluctant to commit to a public school program prior to knowing what program the local school district will offer, thereby allowing the parents to make a better-informed decision as to where the child should attend school.

 

Fortunately, a series of federal court cases has affirmed that local school district must, at the request of a parent, evaluate and, if determined eligible, offer an IEP to any student with a disability or suspected disability residing in the district, even where the student is currently enrolled in a private or charter school.  Such cases have ruled that where a parent either re-enrolls their child in the public school or requests an evaluation with the intention of re-enrolling the student, the public school is required to evaluate the child and develop an IEP for the purposes of proposing a FAPE.

 

In Moorestown Twp. Bd. of Educ. v. S.D., a New Jersey federal court held that even where parents had not enrolled their child in the public school district, but merely sought an evaluation for their child, the school district was required to perform that evaluation and offer an IEP.  The court made clear that school districts may not “refuse to offer an IEP to a student, where the district is aware that the student resides in the district and would like to enroll if offered a FAPE.” The court found that there was no requirement that the child be enrolled in the school district to trigger the district’s obligation to evaluate the student and offer a FAPE: “Moorestown, as the school district of M.D.’s residence, was responsible for providing him a FAPE.”  Because the school district failed to offer the child a FAPE for the three school years at issue, and because the private school in which the child enrolled was appropriate, the district court ordered tuition reimbursement for nearly the entirety of the three school years at issue.

 

Courts have also found that a school district, upon request of parents, must evaluate and propose an IEP for a student even if the school district believes that the parents do not intend to actually enroll the student in the public school.  One court found that, even where there was “strong evidence” that the parent requesting an evaluation and IEP would not have accepted the district’s offer of FAPE, the district was nevertheless “obligated to make an offer.”  Thus, a school district will generally not be able to claim that it was not obligated to evaluate and offer an IEP to a student because the district believed, or even if the parent strongly hinted, that the parent would not enroll the student in the school district, but would remain in private school.

 

On a practical level, parents of a child with a disability or suspected disability who is enrolled in a private school, but wish to evaluate whether their local school district could offer an appropriate program, should request in writing that the school district evaluate and propose an IEP for their child.  The written request should state that the purpose of the request is to ascertain what program that the district can offer their child.  In communications with the district, the parents should make clear that they are willing to consider a district-offered program if appropriate, and the parents should cooperate fully with the evaluation and IEP process.