Showing posts with label private school. Show all posts
Showing posts with label private school. Show all posts

Special Education Law 101 - Part X: Unilateral Placements

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This is another in our continuing series on the basics of special education law.  Today we enter the mysterious world of unilateral placements.  If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the latter remedy.

Unilateral Placements

In the case of Burlington Sch. Comm. v. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE.  Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts to award such reimbursement.  Burlington, supra.

In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.)  The Supreme Court held that courts may award reimbursement in these cases.  Carter, supra.

In Forrest Grove Sch Dist v. TA 129 S.Ct. 2484, 52 IDELR 151 (U.S.  6/22/9)   The Supreme Court held that it is not a prerequisite to reimbursement under IDEA that a child have been previously enrolled in and receive services from a public school. The Court noted that under its previous rulings in Burlington and Carter, courts have broad authority to grant appropriate relief when there has been a violation of IDEA.  The Court held that the 1997 amendments do not limit that authority. The ambiguous language of the provision at issue was not sufficient to effectuate a repeal by implication of Burlington and Carter.


     The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school.  IDEA, § 612 (a)(10)(C)(ii).  Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, §  612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their  rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, §  612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, §  612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, §  612 (a)(10)(C)(iii)(III).  Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, §  612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, §  612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, §  612 (a)(10)(C)(iv)(I)(cc).  Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, §  612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, §  612 (a)(10)(C)(iv)(II)(bb).  See also, 34 C.F.R. § 300.148. 

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Should Private Schools Be Covered by the New Seclusion & Restraint Law?

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The Council For American Private Education, an umbrella group representing a large percentage of private schools in the United States, has written a letter to Congress asking that private schools be exempted from HR 4247, the new Preventing Harmful Restraint and Seclusion in Schools Act.In response, the group called the Alliance to Prevent Restraint and Aversive Intervention and Seclusion, an umbrella group of groups that advocate for parents and children with disabilities, issued their own letter to Congress opposing the CAPE letter. Here is an analysis of the controversy by the Disability Scoop blog.

We have run a number of posts about this issue. I believe that seclusion and restraints is the hot button issue of special education law for the current decade. For example, this is a prior post from this blog with a number of links to resources about the current house bill.

The Senate has not yet taken up this bill. Of course the Senate was recently held hostage by the Senator from Kentucky. (This dates me, but I remember Jim Bunning as a pitcher in the major leagues. It is unfortunate that he will now be remembered as the great enemy of the unemployed rather than the Hall of Fame hurler that impressed so many of us. ) In any event, the Senate is currently tied in knots on other issues. It may be a while before education issues surface there.

But in addition to the pending bipartisan House bill, a larger issue is whether IDEA reauthorization should deal more with behavior issues. IDEA currently only requires positive behavior supports after a proposed disciplinary change of placement is blocked by a finding that a manifestation of the child's disability. There is also a more general and somewhat vague section in the IEP development section that requires the IEP team to consider appropriate strategies if the student's behaviors impede the learning of the student or others. For citations, etc, see this previous post.

Many people think that these provisions need to be beefed up. What do you think?