Our team receives frequent questions about private school placements for special education students. Unfortunately, parents and educators often come to us after hearing misleading advice. Beware of private school placement myths such as:
There are certain school districts where private school placements occur automatically at parent request.
Hiring an attorney will guarantee paid tuition for a parental-placement at a private school.
These myths exist, in part, because of the complexity of the special education process when it comes to private school placements. The issue is complex because there are different types of out-of-district programs, and different ways a special education student can end up in a private school. Often, the special education issues of ‘Free Appropriate Public Education” (FAPE and “Least Restrictive Environment” (LRE) complicate things even more.
In this article we focus on how a student might end up in a private program, and who might pay for that. Consider the most common ways a special education student might end up in a private school:
The student’s parents choose to place them in a private school on their own, and do not want to participate in public-school programming. In these cases, the parents pay for the student’s tuition.
The student’s IEP team concludes the school district cannot provide an appropriate program; then, the IEP team members (including the parents of course) agree on a private school as the appropriate placement location. In these situations, the home school district pays for the out-of-district program.
Perhaps the most complicated situation is where the parents do not feel the school district can provide an appropriate program, but the school district rejects a private school option. In these cases, the parents may request a special education hearing to seek approval for a private school placement and tuition payments.
Private School Tuition Reimbursement for a Parentally-Placed Special Education Student:
There are very specific legal criteria in the Individuals with Disabilities Education Act (IDEA) and New Jersey state regulations that apply when parents seek a private school program that the school district has NOT agreed to. See 20 U.S.C. § 1412(a)(10)(C)(iii), and N.J. Admin. Code § 6A:14-2.10(c).
One of the most important rules to remember is that parents can only obtain tuition reimbursement if they can show (at a hearing) that the school district has not offered the student a Free Appropriate Public Education (“FAPE”).
Under the IDEA and New Jersey regulations, the amount of tuition reimbursement may be reduced or denied:
If, at the most recent IEP meeting that the parents attended prior to the removal of the student from the public school, the parents did not inform the IEP team that they were rejecting the IEP proposed by the district;
If, at least ten business days prior to the removal of the student from the public school, the parents did not give written notice to the district board of education of their concerns or intent to enroll their child in a nonpublic school.
If, prior to the parents’ removal of the student from the public school, the district proposed a reevaluation of the student, but the parents did not make the student available for such evaluation.
Upon a judicial finding of unreasonableness with respect to actions taken by the parents. An example of “unreasonableness” is where parents do not participate “collaboratively” in the IEP process or refuse to attend IEP meetings. See J.F. v. Byram Township Board of Education, 3d Cir. March 30, 2020.
Special education due process hearings can be lengthy and complicated. Parents must prove that the public school was not meeting the student’s needs. Parents may need to provide outside evaluations or hire paid experts to testify. A 2019 New Jersey administrative due process hearing about a parents’ request for a private school placement involved six witnesses, over 100 evidentiary documents and five days just for testimony, not including dates for pre-hearing conferences.
So, whatever your role at the IEP team table, make sure you have accurate information when it comes to private school issues. Beware of Facebook myths and seek the guidance of an experienced special education attorney if you’re unsure of what to do.
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© 2020 Advo-Kids, “All Rights Reserved.”This material is for educational purposes only; it does not provide legal advice.Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.