May parents place their child in a private school and seek reimbursement of tuition costs if
they disagree with a school district’s determination concerning their child?
Yes, subject to certain conditions. A parent who disagrees with a school district’s placement and
proceeds to enroll 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 make a free appropriate public education
(FAPE), available to the child in a timely manner and that the private 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
appropriateness of a parent’s private placement must be determined based upon the same considerations
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)). That means it must provide “educational instruction specifically designed to meet the
unique needs of a [disabled] child.” The basic question to ask is whether the private placement is
“reasonably calculated to enable the child to receive educational benefit.” However, a student’s progress
in a private placement does not itself demonstrate the appropriateness of the 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 addition, the instruction specifically designed to meet the student’s unique
needs must be supported by such services as are necessary to allow the student to benefit from instruction
(Davis v. Wappingers CSD, 431 Fed. Appx. 12 (2d Cir. 2011)). Accordingly, a private placement
program that is predicated on a 12-step substance abuse treatment would not be deemed appropriate for
reimbursement purposes, particularly when the program fails to “address the emotional and behavioral
needs” that affect a student’s ability to make educational progress (P.C. & M.C. v. Oceanside UFSD, 818
F.Supp.2d 516 (E.D.N.Y. 2011)).
The least restrictive environment requirement is a factor in the parents’ choice of private
placement, but it is not dispositive. Parents are not subject to the same mainstreaming requirements as a
school district. Restrictiveness may be relevant in choosing between two or more otherwise appropriate
private placement alternatives, or when considering whether a private placement is more restrictive than
necessary to meet the student’s needs. However, where the school district denies a student a FAPE, the
restrictiveness of the private placement cannot be measured against the restrictiveness of the district’s
proposed placement (C.L. v. Scarsdale UFSD, 744 F.3d 826 (2d Cir. 2014); M.S. v. Yonkers Bd. of
Educ., 231 F.3d 96 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001); Application of the Bd. of Educ. of
the Irvington UFSD, SRO dec. no. 01-035 (2002); Application of a Child with a Disability, SRO dec.
no. 00-056 (2001); Application of the Bd. of Educ. of the [Redacted] Sch. Dist., SRO dec. no. 08-016
(2008)). The parent bears the burden of proving that the private placement is appropriate.
A child does not have to have previously received special education and related services through a
public school system in order for the child’s parents to be able to recover tuition reimbursement (Forest
Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009)).
Are there any limitations on a parent’s right to tuition reimbursement?
Yes. Subject to certain limited exceptions (20 USC § 1412(a)(10)(C)(iv); 34 CFR § 300.148(e)), a
court or hearing officer may deny or reduce the reimbursement if the parents fail to give the school district
notice at the most recent individualized education program (IEP) meeting that they reject the proposed
placement, and state their concerns and their intent to enroll the child in a private school at public
expense, or provide 10 business days (including any holidays that occur on a business day) written notice
to the district prior to 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 also if,
• The school district gives the parents written notice of its intent to evaluate the child and the reasons
for the evaluation prior to the parents’ removal of the child, but the parents fail to make the child
available for the evaluation (20 USC § 1412(a)(10)(C)(iii)(II); 34 CFR § 300.148(d)(2); see Carmel
CSD v. V.P., 373 F.Supp.2d 402 (S.D.N.Y. 2005), aff ’d, 192 Fed. Appx. 62 (2d Cir. 2006))
• The parents fail to cooperate with a school district by not allowing the district a reasonable
opportunity to evaluate their child (Patricia P. v. Bd. of Educ. of Oak Park & River Forest High Sch.
Dist. No. 200, 203 F.3d 462 (7th Cir. 2000)), or not making the child available for intake interviews
at a proposed out-of-district placement (J.S. v. Scarsdale UFSD)
• The parents fail in their obligation to cooperate with their school district in finding an appropriate
placement, such as when they secure a private placement with a large non-refundable deposit before
they refer their child to the committee on special education (Bettinger v. N.Y. City Bd. of Educ., 2007
U.S. Dist. LEXIS 86116 (S.D.N.Y. 2007); but compare A.R. ex. rel. F.P. v. N.Y. City Dep’t. of Educ.,
2013 U.S. Dist. LEXIS 135855 (S.D.N.Y. 2013)), or have an apparent predisposition to view
skeptically any district-suggested placement other than their own choice (J.S. v. Scarsdale UFSD; but
compare N.R. v. Dep’t of Educ. of the City Sch. Dist. of the City of N.Y., 2009 U.S. Dist. LEXIS
27273 (S.D.N.Y. 2009))
• A child’s poor performance in a public school program is due, largely in part, to a parental request
that the child not receive specific services and modifications recommended by the committee on
special education and the child’s teachers (Application of a Child with a Disability, SRO dec. no.
May parents seek tuition reimbursement even if they place their child at a private school
that is not approved by the state?
Yes. According to the U.S. Supreme Court, the parents of a student with a disability may be awarded
reimbursement for private school placement, even if the private school does not meet state
educational agency standards. Courts, however, may consider whether the private school costs are
reasonable (Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993)). Further ruling that parents are
not required to place their children at state-approved schools, the U.S. Supreme Court in the Carter case
explained, that parents cannot be held to the same standards as public school districts when arranging for
the placement of their children.
In addition, the school selected by the parent need not have teachers who are certified in regular or
special education as long as the placement is otherwise appropriate (Omidian v. Bd. of Educ. of New
Hartford CSD, 2009 U.S. Dist. LEXIS 29016 (N.D.N.Y. Mar. 31, 2009); Green v. N.Y. City Dep’t of
Educ., 2008 U.S. Dist. LEXIS 32118 (S.D.N.Y. Mar. 31, 2008)).
May parents unilaterally place their child with a disability in another public school district
and be reimbursed for that placement, if they disagree with the school district’s determination
concerning their child?
Yes. Parents may be entitled to reimbursement for tuition paid to another public school district and for
reasonable transportation costs after the parents remove their child from the school district of residence
because they are dissatisfied with the special education services provided to their child. However, they
must establish that the district of residence failed to make a free appropriate public education
available to their child in a timely manner and that their choice of placement is appropriate (Application
of a Child with a Disability, SRO dec. no. 07-070 (2007); see also Northeast CSD v. Sobol, 79 N.Y.2d
May parents seek reimbursement for the cost of providing related services rather than the
full cost of tuition at a private school?
Yes, 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)). In that case, the parents did not pay tuition
at the private school because the mother worked there. However, they sought reimbursement of the cost of
providing their child a particular form of therapy for deaf children because they disagreed with the
methodology used by the district. Although the parents ultimately failed in disproving the appropriateness
of the district’s therapy, the court disagreed with the district that parents can seek reimbursement of only
In another case, New York’s State Review Officer (SRO) denied a parent reimbursement for the cost of
a private tutor for a student with reading difficulties retained only because the district had discontinued
previously provided services at the parent’s insistence so that the student could take a technology class.
According to the SRO, it would have been inequitable to reimburse the parent for private services that
replaced adequate school services the parent requested not be provided (Application of a Child with a
Disability, SRO dec. no. 05-020 (2005); see also Application of a Child with a Disability, SRO dec. no.
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