Q: My son has a disability and  is not making progress in school.  He needs to go to a special school, but my school district won’t agree to send him there. What can I do?
A:  Your school district must provide a free appropriate public education (FAPE) to each disabled child eligible under the Individuals with Disabilities Education Act (IDEA), the federal law that governs special education in Ohio. If the school fails to do this, you may enroll your child in a private school and seek tuition reimbursement from the school district.  This private school placement is called a “unilateral placement.”

Q: What is “FAPE?”
A: FAPE stands for “free, appropriate public education” that consist of special education and related services tailored to meet each child’s unique needs  in areas such as academics, social skills, adaptive skills, and behavior.  FAPE must be delivered through an Individualized Education Program (IEP), which is developed by an IEP team that includes parents, educators and other specialists.  The IEP must have measurable goals and objectives and must provide sufficient services to  allow the child to make meaningful “educational” progress in all areas of disability, and not just academics. 

Q: Must I inform the public school before I place my  son in a private school?
A: Yes; if your child is attending a public school program, you must tell the school district that you are making a unilateral placement before you remove your son from the public school program.  You can do this either by delivering a letter to the school superintendent at least 10 business days before the removal or by giving notice at the last IEP meeting held before you remove your child from the public school.  It is wise to give written notice at the IEP meeting so that there will be a record. The notice must tell the school district that you are rejecting the IEP because it does not provide FAPE.  In the notice, you also must state your concerns with the public school’s program and placement, and your intent to enroll your child in the private school at public expense.

Q: What if our child has never attended a public school or received special education services?  Can we still  make the unilateral placement and recover tuition?
A: Possibly, though parents should exercise caution because the law is unsettled. Two U.S. courts of appeal (from circuits not covering Ohio) have approved tuition reimbursement for private schools even where the child has not previously received special education services from his or her school district. The U.S. Supreme Court has decided to review one of the cases, Forest Grove School District v. T.A.  Pending the Supreme Court’s clarification of the law, outcomes cannot be assured, but will likely depend upon whether you have given the school district a chance to evaluate your child and offer an IEP, whether the school district has failed to offer FAPE, and whether your child makes progress in the private school.

Q: How do I recover the private school tuition?
A: Typically, you or your attorney must file a request for a “due process” hearing with your school superintendent and the Ohio Department of Education, to recover the tuition.  Your due process hearing request can include a request for mediation, since most due process cases are settled in mediation after the due process has been filed.

Q: What are the requirements for getting tuition reimbursement?
A: There are two basic requirements for getting tuition reimbursement.  First, the school district must have failed to offer or provide your child FAPE.  Second, the special private school must be appropriate for your child. This means it must be either a specialized school or one that provides at least some of the specialized services he needs.  The unilateral placement must be reasonably calculated to allow your child to make progress.  Practically speaking, your child must make meaningful progress in the special school in order for you to recover the cost of the tuition.  For this reason, it would be wise to allow your child a period of time to progress in the private school before you file due process for tuition reimbursement.

4/14/2009

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was prepared by attorney Judith C. Saltzman of the Cleveland and Elyria firm of Hickman & Lowder Co., L.P.A.