The Dilemma:
It is an unfortunate reality that children with disabilities often have needs that go unmet by their public schools. When this happens, parents and caregivers are faced with the daunting task of identifying the best course of action to address the school’s shortcomings. Many questions arise during this process, but one of the most common is: should parents keep their child in school and wait it out or place their child in a private school they believe is better suited to meet the student’s needs? While only parents can say what is right for their child, we hope this article can provide you with information that is helpful when you are making this difficult decision.

A Little Background:
The Individuals with Disabilities Education Act (IDEA) is a federal law that, among other things, governs how schools provide education services and interventions to students with disabilities. The IDEA mandates that public schools provide a free and appropriate public education (FAPE) to students with qualifying disabilities. Schools address the educational needs of these students with an Individualized Education Program (IEP). Parents who believe their child’s needs are not being met by their current IEP can challenge the IEP in an effort to improve the child’s education.

One of the most powerful features of the IDEA is called “tuition reimbursement.” When parents do not believe that their child’s educational needs are being met, they can enroll their child in a private school. Under certain circumstances, the parents can then obtain reimbursement from their child’s school district for the tuition they paid to the private school.

Moving a student to a private school without the public school having agreed to fund the private school is called “unilaterally placing” the child. Unilaterally placing a student is risky because parents are paying the tuition costs up front in the hopes that they will be reimbursed down the line. When considering whether a parent should be reimbursed for a unilateral placement, courts use a 3-prong test that is known as the “Carter-Burlington Test.”

The three prongs:
In order to have a chance at reimbursement, a court must find: (1) that the student was denied a FAPE at their public school placement; (2) the private school was an appropriate placement; and (3) there are no equitable considerations that would require the court to reduce or deny reimbursement for the parents.

The first two prongs are straightforward; they are satisfied if the private school placement is appropriate and the public school is not. The third prong, which assesses equitable considerations, often acts as a catchall for evaluating the reasonableness of the parents and the school district. A common issue that arises under this prong is whether parents provide adequate notice to the school district about their decision to enroll their child in a private school. Typically, at least 10 business days before enrolling their child in private school, parents must, in writing, inform the school district that they 1) find their child’s IEP to be inappropriate and 2) intend to place their child in a private school. Failure to take this step can reduce or eliminate reimbursement for parents.

What to do if you are considering unilaterally moving your child to a private school:
Notify the school of your dissatisfaction with your child’s IEP and educational progress. If you’re thinking of unilaterally moving the child, let the school know in writing at least ten business days in advance. These conversations can be difficult to have, but it is extremely important to establish this history. Moreover, these tough conversations can lead to real progress; the school may be receptive to your concerns. Finally, consider contacting an attorney. An attorney can help you evaluate your child’s placement, select a school that will be appropriate, guide you through the process of sending the ten-day letter, and assist you in seeking tuition reimbursement. If you have any questions, please feel free to contact the Law Offices of David J. Berney, at 215.564.1030. We are happy to assist you.