In accordance with the Individuals with Disabilities Education Improvement Act (IDEIA), all disabled children are entitled to a free, appropriate public education (FAPE) specific to their unique needs. 20 U.S.C. 1412 (2)©.
If parents of a disabled child believe that their school district has not made available to their child a FAPE, both federal and state law provides a procedural protection which allows parents to, at their own financial risk, make a unilateral placement of their child at a private/non-public school that they believe will afford their child the FAPE to which he is entitled.
Federal and State law permits parents to seek reimbursement for the costs of such unilateral placements from their school districts through due processing hearings.
To preserve your right to seek reimbursement for a unilateral placement through due process, proper notice of that placement must be provided in a timely and legally compliant manner to your school district.
Proper notification alone, however, will not avail you of reimbursement for your unilateral placement. Rather, an administrative law judge (NJ) or impartial hearing officer (NY) must first ask:
Did the District make available a FAPE to the student in a timely manner prior to the unilateral placement?
If the judge/hearing officer finds that the District did make FAPE available to the student, then the inquiry ends there. You will not be awarded reimbursement for the costs of the unilateral placement.
If the judge/hearing officer finds that the District did not make FAPE available, then the judge/hearing officer will ask:
Was the private/unilateral placement appropriate?
If a judge finds both that the District did not make FAPE available and that the school chosen for the unilateral placement was appropriate, and assuming proper notice of the placement was provided, a judge/hearing officer should award reimbursement for the costs of the unilateral placement.
Before taking on the financial risk of a unilateral placement, it is important to assess the appropriateness of the District’s program for your child and the appropriateness of the school you are contemplating for the unilateral placement. To make such an assessment it is important to consider the evidence that you have to present to the judge/hearing officer in support of your position.