Under certain circumstances, parents may seek reimbursement costs for their child’s private school tuition if they disagree with a school districts determination regarding the placement of their child. A parent who disagrees with a school district’s placement and enrolls his or her child in a private school may be entitled to tuition reimbursement if a court or hearing officer determines that the school district did not honor its obligation to a free appropriate public education (FAPE) in a timely manner, and that private school placement is appropriate (20 USC § 1412(a)(10)(C)(ii); 34 CFR § 300.148(c)).
According to the U.S Court of Appeals for the Second Circuit, with jurisdiction over New York, the justness of a parent’s private school placement must be determined based upon the same consideration and criteria applicable to determining the appropriateness of a district’s placement (Gagliardo v. Arlington CSD, 489 F.3d 105 (2d Cir. 2007); see also Green v. N.Y. City Dep’t of Educ., 50 IDELR 40 (S.D.N.Y. 2008); but compare G.R. v. N.Y. City Dep’t of Educ., 2009 U.S. Dist. LEXIS 69348 (S.D.N.Y. Aug. 7, 2009)). This means that the school must provide “educational instruction specifically designed to meet the unique needs of a disabled child”. The most basic question to ask is whether or not the placement of a child into a private school is “reasonably calculated to enable the child to receive educational benefit.” However, one must note that a student’s progress in a private placement does not itself demonstrate the appropriateness of its placement (Gagliardo v.Arlington CSD; see also Omidian v. Bd. of Educ. of New Hartford CSD, 2009 U.S. Dist. LEXIS 29016 (N.D.N.Y. Mar. 31, 2009)). In layman’s terms, the fact that a student may progress more in private school rather than the special education programs offered by public schools is not a viable reason for tuition reimbursement. Additionally, the services and instruction tailored to meet the student’s unique meets must be supported by services that are necessary to allow the student to benefit from instruction (Davis v. Wappingers CSD, 431 Fed. Appx. 12 (2d Cir. 2011)).
In addition to providing a free appropriate equation, school districts are required to provide students with a special education in the least restrictive environment possible. However, a parent’s dissatisfaction with their child’s restrictive environment is not dispositive to placing a child in private school and seeking reimbursement.
Limitations to a Parent’s Right to Tuition Reimbursement
Though parents may be entitled to tuition reimbursement for their child’s special education, there are limitations to their rights to reimbursement (20 USC § 1412(a)(10)(C)(iv); 34 CFR § 300.148(e)). A parent’s right to reimbursement may be denied if the parents fail to give the school district notice at the most recent Individual Education Program (IEP) meeting. At such meetings, parents must inform school officials that they reject the proposed placement, and express their concerns. Parents also must state their intent to enroll their child in a private school at the public school’s expense, or provide a written notice 10 business days (including any holidays) before removing the child (20 USC § 1412(a)(10)(C)(iii)(I)(aa), (bb); 34 CFR §
300.148(d)(1); see J.S. v. Scarsdale UFSD, 826 F.Supp.2d 635 (S.D.N.Y. 2011); see also Berger v. Medina City Sch. Dist., 348 F.3d 513 (6th Cir. 2003); Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 (1st Cir. 2002); Pollowitz v. Weast, 90 Fed. Appx. 438 (4th Cir. 2001)).
Tuition reimbursement may be denied or reduced on the following conditions:
Additional Provisions Awarded to Parents
Parents may place their child with a disability into another public school district, and be reimbursed for that placement should they disagree with a school district’s determination concerning their child. Parents may be entitled to reimbursement for tuition paid to another public school districts, and for reasonable transportation costs after the parents remove their child from the school district where they reside, if they are dissatisfied with the special education services provided to their child. However, to be awarded reimbursement, they must establish that the district their child was in, failed to make a free appropriate education available to their child in a timely manner, and that the placement of their child in a different school was appropriate (Application of a Child with a Disability, SRO dec. no. 07-070 (2007); see also Northeast CSD v. Sobol, 79 N.Y.2d 598 (1992)).
Additionally, parents may seek reimbursement for the cost of providing related services rather than the full cost of their child’s tuition at a private school. According to a federal appellate court with jurisdiction outside of New York (M.M. v. School Bd. of Miami-Dade Cnty., Fla., 437 F.3d 1085 (11th Cir. 2006)), the parents did not pay tuition at the private school because the mother was an employee, however, they sought reimbursement of the cost of providing their child a particular form of therapy for deaf children because they disagreed with the methods used by the district. In this case, the parents failed to disprove the appropriateness of the district’s therapy, the court disagreed with the district that parents may only seek reimbursement of tuition costs.
In all, if a school district fails to provide the student a free appropriate education, parents have the right to place their children in other schools, and seek reimbursement for tuition costs and related services. These provisions are in conjunction with the parent’s ability to prove that the school district failed to provide proper education, that their decision to procure other school district, or private school services is appropriate.
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
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