Jun 29, 2009
Last week the Supreme Court ruled in Forest Grove v T.A., that the IDEA authorizes reimbursement of private school tuition to parents when: (1) the public school fails to provide appropriate special education services to the child; and (2) the private school program placement is appropriate. Importantly, this is true regardless of whether the child previously received special education or related services from the public school. Thus, parents should not be faced with the choice of placing their child in an inappropriate program, before seeking appropriate services from a private school.
This decision, however, does not mean that parents may ignore the public school program, place their child in a private program without notice to the school district, and just send the district the bill for the private school tuition. Under this decision, which clarifies the IDEA regulations at 34 CFR 300.148(b), to be eligible for tuition reimbursement for a private school placement parents must establish that, before the student was placed in the private program, the school district did not make a free appropriate public education available to the student in a timely manner and that the private placement is appropriate.
For example, in the facts underlying the Forest Grovedecision, the student had difficulties in school from the time he was in kindergarten through his junior year of high school. His teachers often commented he had difficulty paying attention in class and completing his assignments. His difficulties in school worsened when he entered high school and he was evaluated by a school psychologist at the end of his freshman year. The psychologist reviewed his school records and administered some cognitive ability tests, but decided the student did not need further testing for learning disabilities or attention deficit hyperactive disorder (ADHD). Thus, the student was not found eligible for special education. While the family did not appeal the decision at that time, it was later found by the hearing officer that the school district evaluation was legally inadequate because it did not address all areas of suspected disability, including ADHD.
The student completed the following school year but his problems worsened during his junior year. The family sought private professional advice resulting in the student being diagnosed with ADHD and other disabilities related to learning and memory. Since the private therapist recommended a structured residential learning environment, the parents enrolled their son in a private academy for children with special needs. Then, four days after enrolling their son in the private academy, the parents gave written notice to the school district of the private placement. The parents later requested a due process hearing regarding their son’s eligibility for special education services.
While awaiting the hearing, the school district re-evaluated the student and again found him ineligible for special education services and did not develop an IEP. Since the district did not offer special education services the parents continued his placement in the private academy. At the conclusion of the hearing and after considering the testimony of numerous experts, the hearing officer decided that the student was eligible for special education services because his ADHD adversely affected his educational performance.
Thus, the hearing officer concluded the school district had violated the IDEA by not finding the student eligible for special education services and by not providing those services. Since the school district did not provide the student with a free appropriate public education and the private placement was appropriate, the hearing officer ordered the school district to reimburse the parents the cost of the private school tuition.
To reach that result (to establish that the school had failed to offer an appropriate program and the private placement was appropriate), the parents bore the cost of a private evaluation, the cost of placement in a private school, the cost of an attorney and the experts who testified at the hearing, and the emotional wear and tear of the judicial process. The financial pressure may lessen because, as the prevailing party, the parents should be entitled to attorney's fees.
The Supreme Court, however, did not determine the amount of tuition that should be reimbursed to the family. Instead, the Court remanded the case to the district court to decide the amount of tuition reimbursement. The IDEA provides a number of factors that may result in the cost of tuition reimbursement being reduced or denied. While Congress authorized tuition reimbursement in the IDEA, Congress also wanted to ensure that school districts knew that parents were not satisfied with the public school program so that school districts had an opportunity to resolve the problem before parents placed their child in a private school. Thus, the IDEA provides at 34 CFR 300.148(d) that, before removing their child from the public school, parents notify the school district that the parents are rejecting the school district’s placement and they intend to place their child in a private program at public expense. Parents may provide that notice at an IEP meeting or, as in the Forest Grove scenario, in writing.
The amount of tuition reimbursement may also be reduced if the school district asks the parents to consent to reevaluate the student before the child is removed from the public school program and and the parents refuse. The Supreme Court remanded the case to the district court to consider these factors in determining the amount of tuition to be reimbursed to this family.
In conclusion, I believe this is a wonderful decision for the educational rights of children with disabilities. If a public program is inadequate, parents should not be faced with the choice of placing their child in that program before seeking placement in a private program. But, as the family in Forest Grove found, it is likely to be an uphill battle to establish both the inadequacy of the public school program and the appropriateness of the private placement
