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Meeting the needs of people with disabilities, their families, educators & service providers

Posts Tagged ‘equities’

Tuition reimbursement reduced by 75% where parents failed to make student available for intake interview, precluding placement.

Thursday, April 19th, 2012

J.G. v. Scarsdale Union Free School District, 58 IDELR 16 (S.D.N.Y. 2011):  A U.S. District Court awarded parents of a student with an emotional disability tuition reimbursement for their unilateral placement of their daughter.  However, in light of the parents’ failure to make the student available for an intake interview, the Court reduced the award by 75%.

The student was very successful early in high school, but developed emotional issues , including suicide ideation, that ultimately had an adverse effect on her academic performance and school attendance.  In light of her emotional difficulties, the parents placed her in private programs in Vermont and, ultimately, in Montana.  Despite the unilateral placement, the parents continued to work with the school district to develop an IEP and find an appropriate program.  However, each of the potential programs at which the student would be placed required an intake interview with the student.  The parents decided not to bring the student home for such an interview, based on advice from their mental health professionals that such a visit could have negative effects on the student’s emotional state.  Accordingly, since the student was never available for an intake interview, none of the potential public placements accepted her.

In light of the district’s failure to provide a FAPE, and the appropriateness of the private program selected by the parents, the Court determined that the parents were entitled to reimbursement.  However, despite the parents’ willingness to visit potential public placements, their failure to make the student available for an intake precluded the district from recommending an appropriate program.  Therefore, reimbursement was awarded, but reduced by 75%.

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Notice of unilateral placement for reimbursement is required only at time of initial removal.

Monday, July 11th, 2011

Letter to Miller, 55 IDELR 293 (OSEP 2010):  The U.S. Department of Education, Office of Special Education Programs, informed an interested individual that a parent need only provide the school district with notice of a unilateral placement upon the student’s removal from the public school.  The regulatory benchmark is the child’s removal from the public school, and not the child’s enrollment in the unilateral private placement.  Thus, in order to satisfy the notice requirement, the parent need only provide notice upon the child’s initial removal from public school, and is not required to provide such notice for each subsequent school year the child attends at the unilateral placement.

However, compare this opinion with that of a U.S. District Court several months later in J.W. v. Kingston City School District.

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Parents must notify school district of dissatisfaction with proposed IEP and placement of student in a private school each year.

Monday, May 2nd, 2011

J.W. v. Kingston City School District, 55 IDELR 132 (N.D.N.Y. 2010):  A U.S. District Court reduced the tuition reimbursement award to parents of a student diagnosed with dyslexia.  The impartial hearing officer and State Review Officer both found that the school district failed to show that the proposed IEP for the student was reasonably calculated to provide an educational benefit.  However, the SRO held that the parents should be denied reimbursement on equitable grounds, since they did not raise their concerns about the IEP in a timely manner.

For the school year in question, the school district received the parents’ letter outlining their concerns about the proposed IEP and notifying the school district of their intentions to place the student privately, only five days before the school year began.  The parents argued that the student had attended the private school for two years, and they notified the school district at the time of the student’s initial removal from public school.  The SRO rejected this argument and the Court agreed, noting that parents are obligated to provide notice of their dissatisfaction with the proposed IEP and enrollment in a private school each year.

However, the Court overturned the SRO in relation to the overall balance of the equities.  The Court found that the school district “made no appreciable effort” to address the concerns raised by the parents in their letter, and that the district’s “generic” response to the letter showed that, had the parents raised their concerns sooner, the response would not have specifically addressed the parents’ concerns.  Therefore, the overall equities favored the parents, and entitled them to reimbursement (less a reduction for their failure to provide the requisite ten days’ notice).

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School district’s failure to offer a public placement excused parent from obligation to provide notice of unilateral placement.

Tuesday, November 16th, 2010

C.Z. v. New York City Department of Education, 54 IDELR 223 (S.D.N.Y. 2010):  A U.S. District Court held that parents are not obligated to provide notice of a unilateral private placement when the school district never even recommended a public placement.  As a result, the student’s parents were entitled to partial reimbursement for her unilateral placement at a private school.

The student, who was diagnosed with a speech impairment and central auditory processing disorder, attended a private school offering a language based program from second grade through fifth grade (when she aged out).  The program provided a nurturing environment with a teacher and an aide in classes of eight to ten students.  The student also received related services, including occupational therapy and speech and language therapy.

Since the student was aging out, her parents enrolled her in a different private school due to their concern that the school district would not offer an appropriate program.  Despite such enrollment, the parents purchased “tuition insurance” in the event they removed the student from the private school.  The Court also noted that the parents cooperated with the school district, and participated in the IEP process in good faith.  Despite such participation, the school district never made a final offer of a recommended placement.  As a result, the student attended the private school in which she had been enrolled and the parents never provided written notice of their intention to make a unilateral placement.

The Court determined that since the district never formally offered a placement (which failure the district conceded denied the student a FAPE), the parents were not expected to provide notice under the IDEA, rejecting a placement that was never offered.  Consequently, equitable considerations (including the parents’ cooperation and their reasons for not providing written notice) did not relieve the school’s obligation to reimburse them for the private placement.  However, since the regular education component of the private school did not meet the student’s unique needs, the parents were only reimbursed for the tuition relating to the private school’s support program, conducted by a special education teacher.

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Reimbursement reduced by 25% due to parent’s failure to provide ten days’ notice, and other unreasonable conduct.

Sunday, November 14th, 2010

Anchorage School District v. D.K., 54 IDELR 28 (D.Alaska 2009):  A U.S. District Court upheld the findings of an impartial hearing officer that a school district failed to provide the student a FAPE, but ordered the school district to reimburse the parent for only 75% of the tuition.

The Court noted that the school district failed to monitor the student’s progress by sufficient objective measures, and also stated that the school district’s method to overcome the student’s regression was to “water down” the student’s goals.  As a result, the school district failed to provide an appropriate program.

However, instead of finding the parent entitled to full reimbursement, the Court took into account the fact that the student’s mother failed to provide the requisite ten days’ notice of an intended unilateral placement.  Although the school district had actual notice of the parent’s intention, the Court determined that the parent manipulated the process by only indirectly mentioning the private placement during the final IEP meeting.  At the same time, the parent enrolled the student in his proposed public placement so as not to lose his spot, thereby denying that spot to another student.

Although these circumstances could warrant denying reimbursement altogether, the Court held that the parent was entitled to reimbursement (since the proposed public placement was not appropriate, and the unilateral placement provided a FAPE), but reduced the award by 25% to account for the parent’s actions.

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