Our special education team receives frequent questions about private school placements for students with disabilities. Unfortunately, parents and educators often come to us after hearing misleading advice. Beware of private school placement myths that circulate on social media such as:

  • Private school placements can occur automatically at parent request.
  • Some districts always provide certain private school placements.
  • Hiring an attorney will guarantee paid tuition for a parental-placement at a private school.

These myths exist, in part, because of the complexity of the special education process when it comes to private school placements. In reality, there are different types of out-of-district programs, and different ways a special education student can end up in a private school. The special education concepts of ‘Free Appropriate Public Education” (FAPE) and “Least Restrictive Environment” (LRE) complicate things even more.

In this article we will offer a very basic overview on private school placements. We will focus on how a student with a disability might end up in a private program, and who might pay for that.

Consider the most common ways a special education student could end up in a private school:

  1. The student’s parents choose to place them in a private school on their own, and do not want to participate in public-school programming. In these cases, the parents pay for the student’s tuition.
  2. The student’s IEP team develops an appropriate IEP. When discussing how and where to implement the IEP, the team concludes the school district cannot provide an appropriate program. Then the IEP team members (including the parents, of course) agree on a private school as the appropriate placement location. In these situations, the home school district pays for the out-of-district program.
  3. Perhaps the most complicated situation is where parents do not feel the school district can or is providing an appropriate program, but the school district disagrees. In these cases, the parents may withdraw their child from the public school, enroll in a private school (at their own expense), and then request a special education hearing seeking approval for the private school placement and tuition payments from the public school.

Private School Tuition Reimbursement for a Parentally-Placed Special Education Student:

There are very specific legal criteria in the Individuals with Disabilities Education Act (IDEA) and New Jersey state regulations that apply when parents seek tuition reimbursement for a private school. See 20 U.S.C. § 1412(a)(10)(C)(iii), and N.J. Admin. Code § 6A:14-2.10(c)

One of the most important rules to remember is that parents can only obtain tuition reimbursement if they can show (at a hearing) that the school district has not offered the student a Free Appropriate Public Education (“FAPE”).

And, under the IDEA and New Jersey regulations, the amount of tuition reimbursement may be reduced or denied:

  1. If, at the most recent IEP meeting that the parents attended prior to the removal of the student from the public school, the parents did not inform the IEP team that they were rejecting the IEP proposed by the district;
  2. If, at least ten business days prior to the removal of the student from the public school, the parents did not give written notice to the district board of education of their concerns or intent to enroll their child in a nonpublic school.
  3. If, prior to the parents’ removal of the student from the public school, the district proposed a reevaluation of the student, but the parents did not make the student available for such evaluation.
  4. Upon a judicial finding of unreasonableness with respect to actions taken by the parents. An example of “unreasonableness” is where parents do not participate “collaboratively” in the IEP process or refuse to attend IEP meetings. See J.F. v. Byram Township Board of Education, 3d Cir. March 30, 2020.

Special education due process hearings can be lengthy and complicated. For example, a 2019 New Jersey administrative due process hearing about a parents’ request for a private school placement involved six witnesses, over 100 evidentiary documents and five days just for testimony, not including dates for pre-hearing conferences. In some cases, to counter a school district’s evidence that it made FAPE available, parents may need to provide outside evaluations or hire paid experts to testify.

So, whatever your role at the IEP team table, make sure you share accurate information when it comes to students’ rights to a private school placement. Beware of Facebook myths and seek the guidance of an experienced special education attorney if you’re unsure of what to do.

Call our office, at 856-642-6445 with your questions, comments or concerns about this article!

 

© 2022 The Special Education Team at Posternock, Apell P.C. “All Rights Reserved.”

This material is for educational purposes only; it does not provide legal advice.

This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.