Dear Mr. Cohen,
My daughter has been struggling in school since day one. She went to an early childhood program at age four, was put in a mainstream kindergarten class with an aide, and then again for first, second, and third grade. Now in fourth grade they have placed her in the special education class mixed with fifth graders. There are about nine children in total and I still feel she is not where she should be. It seems that the mainstream class is too hard for her and the special education class is too disrupting. She also feels the same. Time is passing by and my child is not getting proper education according to her needs. She is classified as LD.
Do I have a right to put her in a private school for LD children and have the district pay for it?
Michelle
Your question seeks information about whether you have a right to funding from your school district for a private school for children with learning disabilities if the school district has not provided your daughter an appropriate education. There is no easy answer to this question and it is very much determined by the facts of the particular case.
Parents always have the right to put their children in private schools if they wish to do so at their own expense. There are several ways that a parent may obtain funding from a public school for placement of a child with a learning disability to a private school. First, the parent can inform the public school in advance of their desire for funding at the private school and secure the public school’s agreement in an IEP meeting that the private school placement is necessary in order for the child to receive a free appropriate public education and that the public school will assume financial responsibility for the placement.
Where the public school does not agree to such a placement in advance, the parent may request a due process hearing in advance of the placement and seek a determination by a hearing officer in advance of the placement that the placement is necessary in order for the child to receive a free appropriate public education in the least restrictive environment. In order to do so, the parent must be able to prove at the due process hearing that the child is not making appropriate progress in the public school and that the child’s needs can only be met in the private school.
A third option is for the parent to unilaterally place their child in the private school and seek reimbursement from the public school after the fact. However, in any situation where the parent is thinking of making a unilateral placement, the parent must provide the school district with notice in advance of the unilateral placement that they are making the unilateral placement in the private school, are doing so because they are dissatisfied with the program that the public school has offered, and are seeking reimbursement from the public school for the private school placement.
This advance notice can be provided to the school district in two ways: First, it can be provided to the school district at an IEP meeting, as long as the IEP meeting occurs prior to the child actually starting in the private school. Alternatively, this notice can be provided to the public school in writing as long as it is provided to the public school in writing at least ten business days before the child actually starts in the private school. Where the notice is provided in writing, it must indicate that the student is being enrolled in the private school, that the student is being enrolled in the private school because of dissatisfaction with the public school program and that the parent is seeking for the school district to assume financial responsibility for the private placement.
There are limited exceptions to the advance notice rule, but these exceptions only apply in circumstances where the parent did not receive information about the notice, could not understand the notice requirement because they were illiterate, or were faced with a genuine and medically documented emergency which required placement in less than the ten day period. Even where the parent provides advance notice of their intention to place the student in a private school, this only gives them the opportunity to seek funding from the school district. It does not give them automatic reimbursement from the school district.
In order to obtain reimbursement from the school district, the parent typically needs to request a due process hearing under these circumstances. In the due process hearing, they will be obligated to prove that the public school program did not provide a free appropriate public education and that the private school placement that they obtained does provide a free appropriate public education. Evidence supporting these arguments would include the child’s lack of progress and/or regression within the public school program and clinical information documenting how and why the private school program is appropriate to meet the child’s needs. Parents who are seeking to unilaterally place their children in private schools are generally well served to seek consultation from special education attorneys or knowledgeable advocates before going forward with the placement.