Private School Tuition Reimbursement Under IDEA: the “10-Day Notice Requirement.”
The Individuals with Disabilities Education Act (“IDEA”) specifically authorizes the remedy of private school tuition reimbursement where a public school district has failed to offer an appropriate program and placement to an eligible student with disabilities. Under such circumstances, the child’s parents may enroll the child in a private school and then seek in a Special Education Due Process hearing tuition reimbursement from the school district for the private school placement. In order to obtain an award of tuition reimbursement, the parents must establish three elements: (1) the program and placement set forth in the last Individualized Education Program (“IEP”) offered by the school district was inappropriate to meet the student’s needs; (2) the private school chosen by the parents is appropriate; and (3) the equities of the case do not support a reduction or complete denial of tuition reimbursement.
The third requirement is particularly important, and yet often overlooked. Many courts have viewed this requirement in terms of the cooperation of the parents with the school district in the IEP process. For example, did the parents attend all IEP meetings?; did the parents visit any offered placements before turning them down?; and did the parents keep an open mind and seriously consider an IEP offered by the school district rather than pre-deciding to turn down any offered IEP and instead only seek private school tuition reimbursement?
While the factors that may be considered in this inquiry can be many and diverse, there is one very specific requirement that is contained within the text of the IDEA statute itself: the parents must, at least 10 business days prior to “removal of the child from the public school,” provide the school district written notice that they are rejecting the proposed IEP, and setting forth their concerns and their intention to enroll the child in a private school and seek tuition reimbursement from the school district. This requirement, the “10-day notice requirement,” is intended to allow a school district sufficient time to propose a new IEP to attempt to remedy the parents’ concerns prior to the student leaving the school district.
While this requirement seems relatively straightforward, it raises an issue that courts have addressed on numerous occasions: when is a child “removed” from the public school? This issue is important as many private schools require an enrollment contract to be signed, and a deposit paid, well in advance of a child’s attending the school. Recently, a federal court in New Jersey held that a student was “removed” from the public school when her parents signed an enrollment contract with a private school, and paid a 10 % tuition deposit, in May 2016, even though the child continued to attend the public school for the remainder of the school year, and did not start at the private school until the following Fall. Thus, the court interpreted “enrollment in a private school” as “removal” even though the student stayed in the public school, and the parents retained the right to keep the child in the public school with only the sacrifice of their deposit. The court found that the parents’ failure to provide the required notice at least ten business days before signing the enrollment agreement violated the 10-day notice requirement, and subjected the parents to tuition reimbursement reduction or denial. The court, however, recognized that the failure to provide the notice likely did not practically impede the school district’s ability to propose a new IEP before the student started attending the private school in the Fall, and strongly hinted that the presiding Due Process Hearing Officer should not entirely deny tuition reimbursement on this basis.
Other courts, in contrast to the New Jersey court, have found that merely putting a deposit down for a private school, or signing an enrollment contract that does not carry a heavy financial penalty, does not necessarily equate to “removal” of the student under the 10-day notice rule. Courts recognize that parents can permissibly take such actions to reserve a “spot” for the student while still working in good faith to agree on an appropriate IEP. However, what may be considered “removal” of a student may change on a case-by-case basis. Thus, parents who must sign an enrollment contract, put down a deposit, and/or take some other action to reserve a student’s place in a private school should seriously consider providing the required 10-day notice before doing so, or any future tuition reimbursement claim could be denied or reduced. If notice is given, it may be prudent to state in the notice that the parents, despite the enrollment, intend to continue to cooperate with the school district in the IEP process, and will seriously consider an offered public school placement.
By Michael Gehring, Esq., McAndrews Law Offices, P.C.