A good place to start this discussion is with understanding that parents have the right to enroll their child in any school they choose. Whether their child is a typical learner or a student with challenges, it is completely up to the parents to decide where and how they obtain their education (so long as they are, in fact, being educated, since attendance at a school or participation in an authorized home school program is mandatory). The issue in these situations is who will pay for this education.
It is also important to understand that states have a list of "approved private special education programs". The fact that these schools are "approved" means only that these programs meet certain criteria and follow certain rules - things like curriculum, school calendar, and participation in state testing. Local school districts that cannot meet the needs of a particular child may agree to place a student in one of these approved schools. The local district takes responsibility for the student's application and arranges to pay the tuition at this private approved school. [The state reimburses the local district for much of this tuition]. There is no cost to the family. Once the student is accepted into the approved private school, it becomes the placement set forth in the student's IEP.
Frequently, however, the local school district does not agree with the parents' contention that a particular student requires a private school in order to meet his or her needs. They offer an IEP that provides for the student to be educated in a public school, perhaps in a special class or with special supports. When that occurs and the parents believe that their child is not being provided with an appropriate public education - something universally referred to as FAPE (free, appropriate, public education), the parents may decide to enroll their child in a non-approved school that they believe will meet their child's needs. They may then file for a hearing before a state hearing officer to seek to have their tuition payments at the private school reimbursed to them. We recommend that the parents work with an attorney who is experienced in handling special education matters to represent them in the hearing. Note that local school districts cannot and will not place a student in a non-approved private school, even if they think it would be helpful for the child.
- First, the local school district has the burden of establishing that their IEP, including the school setting, is appropriate. If they succeed in demonstrating this, then they will prevail at the hearing.
- IF the district fails to establish that its IEP is appropriate, then the hearing officer will look to see whether the school in which the parents have enrolled their child is, indeed, an appropriate setting in light of the student's needs. Generally, a private special education school that works with students like the one at hand will be deemed appropriate. In contrast, a private general education program with little experience with students with disabilities will likely not be appropriate.
- Finally, the hearing officer will look at the equities, meaning that it will examine whether the parents have dealt fairly with the district by looking at the programs that the district suggested and not having signed a binding contract with a private school in advance of examining the programs the district recommends. Note, however, that the parents’ preference for a private school is not a bar to reimbursement.
Even parents who are successful at a hearing still must lay out the tuition and await reimbursement which can come more than a year after the fact, given the time involved in scheduling hearings (even without an appeal from the hearing decision by the district). And the hearing process needs to reoccur each year, unless the parties reach a settlement. There can be no guaranty that parents will be awarded reimbursement, although an experienced attorney looking at all the facts in a particular case can be helpful in weighing the likelihood of success.