By Arshi Pal, Esq.

Pursuant to the Individuals with Disabilities Education Act (IDEA), school districts must provide a Free Appropriate Public Education (FAPE) to students with disabilities. If a parent believes that the school district has failed to provide a FAPE, the parent can unilaterally place their child in a non-public school of their choosing and exercise their due process rights to seek tuition reimbursement from the school district. This is a long and involved process that parents generally pursue at their own financial risk; however, in limited circumstances, certain schools may agree to bear this financial risk with respect to students from families with limited means.

To obtain tuition reimbursement, parents must send the appropriate notice to the school district and file a due process complaint to request an impartial hearing. An Impartial Hearing Officer (IHO) will be assigned by the district to monitor any settlement discussions and, if necessary, conduct a hearing. The IHO’s determination of whether tuition reimbursement should be awarded to the parent is conducted according to a three-pronged analysis, often referred to as the Burlington/Carter test. The three prongs are (1) the school district denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition reimbursement.

Prong I: Denial of FAPE

Under New York State law, the school district must prove it provided a FAPE to the student. The term FAPE is not defined in federal law. However, it typically implies both that the school district 1) followed the procedural requirements of the law and 2) developed an IEP that would provide the student with educational benefits. In 2017, the Supreme Court clarified that school districts must create an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Failure to follow the IDEA’s procedures are referred to as procedural violations, which may have impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process, or caused a deprivation of educational benefits. Failures to provide an appropriate program and services are referred to as substantive violations. IHOs have consistently found that failure to create an IEP is a de-facto denial of FAPE. Other examples of a denial of a FAPE include mandating an inappropriate program without supplementary aids and services; failure to implement an IEP; or failure to conduct appropriate evaluations.

Prong II: The Private Placement is Appropriate

Once an IHO finds that the District failed to provide a FAPE, the next analysis is whether the private placement is appropriate to address the child’s unique needs to enable them to receive educational benefits. It is the parents’ responsibility to prove the appropriateness of the private placement. As the Supreme Court has never ruled on specific characteristics of an appropriate private placement, in New York State the IHO’s analysis is guided by a 2006 decision of the Second Circuit Court of Appeals holding that a unilateral private placement cannot be regarded as proper under the IDEA unless it provides some element of special education services in which the school district’s program was deficient. IHOs will typically will not order reimbursement if the chief benefits of the chosen school are the kind of advantages that might be preferred by parents of any child, disabled or not. Rather, the private school must be methodologically or therapeutically structured and provide services individually tailored to the student’s specific needs. While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.

Prong III: Equities Favor Tuition Reimbursement

If the IHO finds that the private school is appropriate, the IHO will determine whether the equities favor tuition reimbursement, that is, whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA. Parental cooperation includes participating in meetings, sharing relevant documentation, making the student available for evaluations and instruction, and promptly sharing concerns. Another inquiry is whether the Parents provided a timely notice of unilateral placement 10 days prior to enrolling the student in the non-public school. The amount of tuition reimbursement may be reduced if the Court determines that the parents obstructed the district’s efforts, if they did not provide timely notice, or if the cost of the private education was unreasonable.

Placing your child in a specialized private school and pursuing tuition reimbursement is a significant financial risk, and analysis of the likelihood of recovery is complex as each situation is unique. As such, consulting with an attorney is recommended to understand potential strengths and pitfalls of your case.