Private School Tuition Reimbursement

By Rebecca Kirschner, Esq.

Pursuant to the Individuals with Disabilities Education Act (“IDEA”), public schools are required to provide students with disabilities a Free Appropriate Public Education (“FAPE”).  A FAPE is defined as educational instruction designed to meet the unique needs of the child, accompanied by the necessary services to ensure the student can benefit from that instruction.  An Individualized Education Program (“IEP”) is the primary mechanism through which FAPE is delivered to students with disabilities.   Often, disputes arise when parents and the district disagree on whether an IEP is appropriate to sufficiently support the student’s needs to allow for meaningful progress.  If parents believe that the school district has failed to provide their child with a FAPE, they may choose to unilaterally place their child in a private school and seek tuition reimbursement from the district.

The Burlington-Carter Test is a three-prong test used to determine whether parents of children with disabilities are entitled to reimbursement from their public school district for the costs of unilateral placement.  Under the Burlington-Carter test, a district may be required to reimburse parents for private school tuition if (1) the district denied the student a FAPE; (2) the parents’ unilateral placement is appropriate; and (3) equitable considerations support the parents’ claim for reimbursement.

The first prong of the Burlington-Carter test examines whether the public school denied the student a FAPE.  The District must demonstrate that it offered the student an appropriate program and related services.  When determining whether the District provided the student with a FAPE, courts will examine whether the District complied with the procedural requirements set forth in IDEA and whether the IEP was reasonably calculated to allow the student to make appropriate progress in light of the child’s circumstances.  The student’s unique circumstances and specific needs determine the adequacy of the IEP in question.  Districts are only required to provide an appropriate education.  They are not required to provide what’s optimal for the student, or to maximize the potential of students with disabilities.

The second prong examines whether the private placement chosen by the parents is appropriate for the student considering the student’s individual needs.  When determining whether the parents’ unilateral placement is appropriate, parents must demonstrate that the placement was likely to produce progress, provides educational instruction specially designed to meet the unique special education needs of the student, and is supported by the services necessary to allow the child to benefit from instruction.   

The third prong considers equitable considerations.  This inquiry focuses on whether the actions of the parents were reasonable and whether the balancing of the equities support reimbursement.  Factors considered include whether the parents provided timely notice of the unilateral placement to the District, and whether the parent cooperated with the District by attending IEP meetings, consenting to evaluations, and fairly considering all District proposed programs.

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.

The Differences Between IEPs and Section 504 Plans

By Alyssa Drazin, Esq.

IEP vs. 504 Plan

Students with disabilities are protected by both federal and state laws.  The Individuals with Disabilities Education Act (IDEA) is the federal funding law for special education. It prescribes certain requirements that states must agree to abide by in order to get federal special education funding.

Section 504 of the Rehabilitation Act of 1973 is the federal law that protects qualified students from discrimination based on their disability. Both the IDEA and Section 504 require districts to provide a free, appropriate public education (FAPE) to eligible students with disabilities. While the purpose of both laws is to provide an eligible student with FAPE, the mechanism in which FAPE is implemented is different. Students who qualify under the IDEA are eligible to receive an individualized education plan (IEP). Students who qualify under Section 504 of the Rehabilitation Act of 1973 are eligible to receive a 504 plan.

What is an IEP?

An IEP is a written document outlining the special education and related services that an eligible student will receive at school. An IEP includes modifications, accommodations, and/or related services that the student requires in order to receive FAPE. An IEP is meant to enable a student to make meaningful educational progress in light of his/her unique circumstances.

A student is deemed eligible for special education and related services when it is determined that the student has one or more of the 14 disabilities listed below, the disability adversely affects the student’s educational performance, and the student is in need of special education and related services.

1. Auditory impairment

2. Autism

3. Intellectual disability

4. Communication impairment

5. Emotional regulation impairment

6. Multiple disabilities

7. Deaf/blindness

8. Orthopedic impairment

9. Other health impairment

10. Preschool child with a disability

11. Social maladjustment

12. Specific learning disability

13. Traumatic brain injury

14. Visual impairment

An IEP is developed by the student’s IEP team. Meetings of the IEP team must include: the parent, a general education teacher, a special education teacher, an individual who can interpret evaluation results, the case manager, representative of the district board of education, the student when appropriate, and, at the discretion of the parent of board of education, other individuals who have knowledge or expertise regarding the student.

The IEP should tell the reader where the student is currently functioning, what the annual goals are for the student, and what programming is needed to ensure the student meets their annual goals. To be appropriate, the IEP must permit the student to progress in the least restrictive environment (LRE).

What is a 504 Plan?

A 504 plan is a written document outlining the accommodations and related services that an eligible student will receive in school. A 504 plan is meant to provide the services needed to meet the students’ individual needs as adequately as their nondisabled peers.

A student is eligible for a 504 plan if he/she has a physical or mental impairment that substantially limits one or more major life activities. Major life activities may include functions such as caring for self, performing manual tasks, walking, seeing, hearing, speaking breathing, learning, or working.

The 504 plan is developed by a multidisciplinary group of individuals who are knowledgeable about the student, including the student’s parents, the meaning of evaluation data, and placement options.

While Section 504 does not mandate that certain information be included, a 504 plan typically includes information about the student's disability and the accommodations the student requires to receive FAPE.

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.

Federal Court Rules Connecticut Must Provide Special Education Services to Students Until Age 22

Connecticut's special education statute and regulations provides that an individual with a disability who turns 21 during the school year is entitled to receive special education only until the end of that school year. A group of disabled students brought a class action law suit arguing that the State's failure to provide special education to individuals with disabilities between the ages of 21 and 22 violates the IDEA because the State provides public education to non-disabled individuals in that age range through adult education programs that allow their students to earn high school diplomas. After determining that the Connecticut adult education programs provided to individuals over the age of 21 qualified as “public education” under the IDEA, the United States Federal Court, District of Connecticut, held Connecticut must also provide a free appropriate public education under the IDEA to disabled students who have not yet obtained the age of 22.

Click here to access the decision.

SIXTH CIRCUIT RULES STUDENTS HAVE FUNDAMENTAL RIGHT TO ACCESS BASIC LITERACY

The Sixth Circuit recently held that a lawsuit brought by students at several of Detroit’s worst performing public schools claiming that poor conditions within their classrooms have deprived them of a basic minimum education, meaning one that provides a chance at foundational literacy, may continue.

The Sixth Circuit specifically addressed an issue the U.S. Supreme Court has avoided: whether the Constitution provides a fundamental right to a basic minimum education. In examining the Supreme Court’s reasoning in other cases and applying the Supreme Court’s due process framework, the Sixth Circuit held “[a]ccess to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’” The Court went on to hold that “without the literacy provided by a basic minimum education, it is impossible to participate in our democracy.” The Court accordingly held that students have a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy.

This decision reversed the District Court’s dismissal of the students’ claims and remanded the case for further proceedings.

Click here to access the decision.

Court Holds District Failed to Provide FAPE Because the Proposed Therapeutic Day Program Could not Meet the Student's need for 24/7 Behavioral Supports

A Pennsylvania District Court found that a school district did not provide FAPE when it offered a student with autism, OCD, and a conduct disorder a therapeutic day program that could not meet his need for 24/7 behavioral supports. Specifically, the student was obsessed with playing video games and would become violent and would elope if reasonable limits were set on his gaming time. The therapeutic day program director offered very general testimony as to the appropriateness of its program for the student with no specifics as to how it would teach the student to use electronics on a limited basis. The director of the program failed to identify any facts to illustrate how the program would address the student’s unique needs. The Court went on to uphold the appropriateness of the unilateral placement and granted the family’s request for reimbursement.

Click here to access the decision.

Despite a Private School Program's Flaws, Court Orders School District to Reimburse Tuition

A Federal District Court in New York recently upheld a State Review Office decision granting a family reimbursement from a local school district for the unilateral placement of their son at a private school. The Court first upheld the determination that the District’s program, which called for a 15:1 class, was inappropriate because, among other things, the student needed very small class sizes. The Court went on to hold that the private school, while not ideal, was appropriate. While the District argued the private school did not meet all of the student’s needs, the Court held it was nonetheless appropriate because it provided instruction that was specifically designed to meet the student’s unique needs.

Click here to read the decision.

Federal Court Decision Highlights the Importance of the Transition Planning Process

A U.S. district Court in Massachusetts recently held that a school district must conduct formal school based evaluations of a student’s functional, vocational and independent living skills at least annually. The Court ordered the school district to fund the evaluation and transportation costs when they found that the school district had failed to evaluate the student annually.

Under IDEA, transition is a “results-oriented process” in academic and functional achievement that supports successful postsecondary training and programs, independent living, recreation and work in the community. Transition services are a coordinated set of services that help students to prepare for post-school activities like postsecondary education, independent and supported community living arrangements and skills, employment, job training and recreation and leisure activities. The IEP transition planning process is not just one meeting. It is an annual process that develops areas of need and interest, identifies skills needed for transition, identifies obstacles, discusses services available, graduation options and determines assessment needs. In the case before the U.S. District Court, the Court held the student may not have been receiving the transition services that she required and she was therefore entitled to an evaluation, funded by the school district, to assess her current vocational skills, needs and interests, particularly in her preferred field of interest.

Click here to access the decision.

District's Failure to Conduct All Necessary Assessments to Determine Student's Eligibility for Special Education Resulted in Federal Court Granting IEE for all Assessment Areas

The District Court for the District of Columbia held a school district’s failure to conduct one of five assessments when conducting an initial evaluation to determine her eligibility under the IDEA rendered the entire evaluation deficit and ordered the school district to fund an entirely new Independent Education Evaluation (“IEE”), which would encompass areas of assessment the District had properly conducted. In making this determination, the Court emphasized the IDEA defines “evaluation” and “assessment” differently, with various assessments making up an evaluation or re-evaluation. As a result, “when ‘a parent requests an [IEE],’ the school must grant that request unless it can demonstrate to an administrative hearing officer ‘that its evaluation is appropriate,’” meaning the District must demonstrate all the underlying assessments are appropriate. A District “cannot defend only some of the underlying” assessments. If, as was the case here, a District can only defend some of its assessments as being appropriate, or it failed to conduct assessments deemed necessary and appropriate for a student, a parent is entitled under the IDEA to an IEE in all assessment areas “necessary to formulate that evaluation.” 

Click here to access the decision.

Fifth Circuit Finds Social Skills Progress is an Important Factor in Determining Whether a General Education Setting is Appropriate

The Court of Appeals for the Fifth Circuit recently affirmed a ruling that placing a student with autism in a general education classroom with supports and modifications was appropriate and the least restrictive environment. The Court emphasized social skills gained in general education classrooms are an important factor for determining whether a general education classroom is appropriate. The Court stated general education placement considerations are not decided by asking “whether or not the student will gain any educational benefits from regular education because educational benefits are not mainstreaming’s only virtue.” Here, the student not only made “academic progress” in the general education setting, but the student’s “behavior and social skills had similarly improved due to [his] ability to model the conduct of his general-education classmates.” 

Click here to access the decision.