Pursuant to both state and federal law, students with special needs are entitled to a free appropriate public education (“FAPE”). If parents are dissatisfied with the appropriateness of the school district’s programming, parents have the right to place a student in a private school program at their own expense and seek reimbursement from the district. This is called making a “unilateral placement.” Whether or not a lawsuit seeking reimbursement will ultimately be successful depends on a number of complex factors that are beyond the scope of this post, but it is important to provide adequate notice to the school district of a student’s new placement.
Per 20 U.S.C. §1412(a)(10)(C)(iii), any eventual reimbursement award for a unilateral placement may be reduced or denied entirely if parents did not provide their district with adequate notice of the placement.
(iii) Limitation on reimbursement
The cost of reimbursement…may be reduced or denied —
(I) if —
(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, that parents did not give written notice to the public agency of the information described in (aa).
This means that parents can either provide adequate notice verbally at a Team meeting or in writing ten business days before the placement occurs. As a practical matter, parents who give verbal notice at a Team meeting should always follow up with written notice to counter any later claim by the school district that notice was not given timely or at all.
Whether verbal or written, appropriate notice consists of three elements:
- A statement that the parents reject the placement proposed by the public agency to provide a FAPE to their child;
- A summary of the concerns that led the parents to make the unilateral placement; and
- A statement that the parents intend for their child’s private placement to be at public expense.
Parents who fail to provide notice do so at their peril unless one of a few limited exceptions apply: 20 U.S.C. §1412(a)(10)(C)(iii) lists relevant exceptions:
Notwithstanding the notice requirement [above], the cost of reimbursement—
(I) shall not be reduced or denied for failure to provide such notice if
(aa) the school prevented the parent from providing such notice;
(bb) the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(I); or
(cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and
(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if—
(aa) the parent is illiterate or cannot write in English; or
(bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.
Appropriate notice, delivered with the right elements at the right time, is meant to give a school district the opportunity to address the parents’ concerns before the unilateral placement occurs, enabling the school district to take steps to resolve the parents’ concerns without the need for an outside placement. However, the notice letter (or Team discussion during which parents provide notice) should not be the first time the Team hears about or is asked to respond to the parents’ concerns.
Although the success of a unilateral placement claim does not rest on adequate notice alone, providing adequate notice is an easy, low-cost way to solidify one critical part of a reimbursement claim.
Melanie R. Jarboe is a partner in the Special Education and Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.
Good overview of an important issue which can be very confusing! Thanks for clarifying some of the critical details.