The most common case in special education law involves the unilateral placement of a student with special needs into a private school setting. After making the placement, the family then seeks reimbursement from the local education agency by filing a due process petition or an impartial hearing request.
The Notice Requirement
In order to pursue reimbursement, it is essential that the family provide the local education agency with notice of the intent to unilaterally place a child into a private setting and to seek reimbursement.
The costs associated with 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 the 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, the parents did not give written notice to the public agency of the information described in item (aa).” 20 U.S.C. 1412.
New Jersey Law
The parents must provide notice to the district board of education of their concerns and their intent to enroll their child in a nonpublic school at public expense. The cost of reimbursement described above may be reduced or denied:
1. If at the most recent IEP meeting that the parents attended prior to the removal of the student from the public school, the parents did not inform the IEP team that they were rejecting the IEP proposed by the district;
2. At least 10 business days (including any holidays that occur on a business day) prior to the removal of the student from the public school, the parents did not give written notice to the district board of education of their concerns or intent to enroll their child in a nonpublic school;
3. If prior to the parents’ removal of the student from the public school, the district proposed a reevaluation of the student and provided notice according to N.J.A.C. 6A:14-2.3(g) and (h) but the parents did not make the student available for such evaluation; or
4. Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
New York Law
The cost of reimbursement described in the paragraph above may be reduced or denied:
1. if: (a) At the most recent CSE or CPSE meeting that you attended prior to your removal of your child from the public school, you did not inform the CSE or CPSE that you were rejecting the placement proposed by the school district to provide FAPE to your child, including stating your concerns and your intent to enroll your child in a private school at public expense; or (b) At least 10 business days (including any holidays that occur on a business day) prior to your removal of your child from the public school, you did not give written notice to the school district of that information;
2. if, prior to your removal of your child from the public school, the school district provided prior written notice to you, of its intent to evaluate your child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but you did not make the child available for the evaluation; or
3. upon a court’s finding that your actions were unreasonable.
However, the cost of reimbursement:
1. must not be reduced or denied for failure to provide the notice if: (a) the school prevented you from providing the notice; (b) you had not received notice of your responsibility to provide the notice described above; or (c) compliance with the requirements above would likely result in physical harm to your child; and
2. may, in the discretion of the court or an IHO, not be reduced or denied for the parents’ failure to provide the required notice if: (a) the parent is not literate or cannot write in English; or (b) compliance with the above requirement would likely result in serious emotional harm to the child.
To summarize the Federal and State laws, the family must take any one (1) of the steps listed above in order to preserve the right to seek reimbursement in a unilateral placement case.
There is an exception that allows for families to avoid the notice requirement, if providing notice, and then waiting the requisite period of time, “would likely result in serious emotional harm to the child.” That is a very high standard, however, and, should only be relied upon by a family in the most extreme situation. If you have any question regarding the notice provision, you should immediately consult with an attorney.
Please be mindful of the fact that the written notice requirement is TEN (10) BUSINESS DAYS, not ten (10) calendar days.
We understand that this requirement may lead to some difficult decisions, as families often feel that the placement must be made on an emergency basis. We cannot, however, stress enough the importance of giving notice to your local education agency. There are many families that feel forced to make this difficult decision, and many families inform us that there is not enough time to participate in an IEP meeting and/or to provide sufficient written notice. The notice provision creates a legal requirement, and while many families understandably find it to be an onerous requirement, it is something that you must honor in order to give your family a chance of recovery for the unilateral placement against your local education agency.
Below, we have provided links to cases, nationwide, involving unilateral placements.
D.A. v. New York City Dept. of Educ., 56 IDELR 42 (S.D.N.Y. 2011)
Lazerson v. Capistrano Unified Sch. Dist., 56 IDELR 213 (C.D.Cal. 2011)
J.B. v. Bridgewater-Raritan Reg. Bd. of Educ., 52 IDELR 39 (D.N.J. 2009)
Erin K. v. Naperville Sch. Dist. No. 203, 109 LRP 63178 (N.D.Ill. 2009)
Covington v. Yuba City Unified Sch. Dist., 56 IDELR 37 (E.D.Cal. 2011)
G.R. v. New York City Dept. of Educ., 53 IDELR 9 (S.D.N.Y. 2009)