By: Chloe Plaisance* (*Chloe Plaisance is currently a law student at the Sandra Day O’Connor College of Law at Arizona State University. Chloe completed a legal internship with ACDL’s Education Team in the Spring of 2022.)
This blog post is the third in a 3-part series on private placements. When a parent enrolls a child in private school and then files due process to seek tuition reimbursement, there are specific rules in the IDEA that the parent must follow to ensure they can be reimbursed for the private placement if they win. Even if an administrative law judge finds that the unilateral parental placement was necessary for the child to receive FAPE, the judge may still deny or reduce tuition reimbursement for amounts already paid if the parents did not provide advance notice to the LEA of their intent to move the child, did not make the child available to the LEA for an evaluation is some situations, and did not act reasonably.
Advance Notice of the Placement
Parents must provide the LEA with advance notice of their intent to make a unilateral parental placement. There are two options: inform the IEP team at the last IEP meeting they attend, or put the notice in writing and deliver it to the school at least 10 business days prior to removal of the child from the LEA.
There are four situations in which reimbursement cannot be reduced or denied because of failure to provide advance notice:
- the school prevented the parents from the providing the notice;
- the school did not provide the parents with a copy of their procedural safeguards, including information about the requirement to give notice of a unilateral parental placement;
- giving 10 business days’ notice would have likely resulted in physical harm or serious emotional harm to the child; or
- the parents are not literate or cannot write in English.
Availability for Evaluation
If, prior to the parents’ removal of the child from the LEA, the LEA informed the parent of its intention to evaluate the child, the parents must make the child available to be evaluated. Failure to do so can result in denial or reduction of reimbursement.
At the hearing, the judge or hearing officer will evaluate the actions of the parents to determine if they were reasonable. If they find the parents’ actions were unreasonable, the hearing officer may deny or reduce tuition reimbursement.
Whenever possible, provide advance notice that meets the IDEA’s requirements. While either option will satisfy the requirement, the best and safest practice is put the advance notice in writing, keep a copy, use a delivery method with a receipt, and wait for the full 10 business days before changing the placement. Keep in mind that business days means workdays and excludes weekends and major holidays. Check the school’s calendar for all workdays.
To summarize, in Arizona, parents always have the right to place their children in private school at their own expense. If they believe their child requires private school placement to receive FAPE under IDEA, they should consider first requesting that change in placement from their child’s public school of enrollment. If there is a disagreement with the public school about the need for a private school placement, parents have the option to make a unilateral change in placement and seek reimbursement through a due process hearing, but there are specific steps they need to take if they want to preserve their right to seek reimbursement. Finally, it is important for parents to understand that their child will lose most of their IDEA rights and protections if they are parentally placed in a private school without a finding that the placement is necessary for FAPE.
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