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Non-approved Special Ed. Schools
Q: How is it determined that a child needs placement in a school that is not on the state's list of approved special education schools, and when is a school system required to pay for such a school?
A: The vast majority of children with special education needs can be well served within public school programs. But when the child's needs are too involved or the school system does not have the resources to provide necessary services itself, IDEA provides for placement in an outside program at the school system's expense. State educational agencies normally have a process for approving private school programs to serve children with special educational needs, either by listing such schools generally or by approving schools for specific children, case by case. If there is a general approval process, you can usually get a list of approved schools from the state department of education (visit FEN's State Resources). There may also be a private association of special education schools in your state who can give you a list of their member schools with information about their programs. (In Massachusetts, for example, the Massachusetts Association of 766 Approved Private Schools, or "MAAPS," not only publishes a book of its members but also maintains a website.)
Schools might not be approved for several reasons: They may not have applied for approval; they may not usually serve students with special education needs; or they may lack elements required for approval such as having a certain number of teachers with special education certification. Despite its lack of approval, however, a particular school may offer just the right kind of program, peer group, and related services to meet a particular child's special education needs.
In 1993 the U.S. Supreme Court decided that a school system could be ordered under IDEA to pay for placement at a school that is not state-approved under certain conditions. In &linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/data/us/000/u10430.html">Florence County School District 4 v. Carter, 510 U.S. 7 (1993), the Court held that where a proposed IEP was inappropriate and where the parents enrolled their child at a private school that met the child's needs even though it was not approved, the school system could be ordered to reimburse the parents retroactively for the cost of that placement. The Court had already determined in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), that school systems could be ordered to reimburse parents who placed their child at an appropriate private program pending the resolution of a dispute over an inappropriate IEP. Florence County made it clear that parents would not lose that right by selecting a non-approved school as long as they could demonstrate that the school offers an appropriate program to meet the child's special education needs.
Placement at a non-approved school can also be funded when the school system agrees that an outside placement is necessary and there are no appropriate approved programs available to meet the student's needs. Typically the state procedures in that case will require the school system to document that it attempted unsuccessfully to find an approved program for the child before an appropriate non-approved placement would be permitted.
Parents should explore approved programs themselves before they place a child unilaterally at an unapproved school. Any unilateral placement runs the risk that even if the school system's IEP is found to be inappropriate, the parents' choice of placement will also be found inappropriate, and the school system will not be ordered to reimburse tuition. That risk is greater when the parents' choice of program is not state-approved. Checking out the approved program options first may also reduce the risk of an order finding the parents' choice appropriate for purposes of reimbursement for past tuition, but inappropriate for the future where the student could be transferred to an approved program.
Anyone considering making a unilateral placement and seeking funding later from their school system needs to be aware of recent amendments to IDEA requiring that the school system be given prior notice of the parents' rejection of the proposed IEP, their"concerns" about the proposed IEP and their intent to enroll the child in a private school and to seek public funding for that placement. This notice can be given either at the last TEAM meeting before the parents remove the child from the public school or in writing ten business days before such removal [20 U.S.C. Sec.1412(a)(10)(c)(iii)]. (This limitation to parents' right to reimbursement only applies if the school system has informed parents of the notice obligation.)
Needless to say, the process around enrolling your child in a private placement and seeking funding from your school system can be very complicated and stressful. Before you take such a step, you should consult both with experts in the field of your child's disability and an expert in special education law and procedures in your state to be sure you make an informed decision and don't inadvertently lose rights that are yours under the law.
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Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, Massachusetts. Crabtree concentrates in special education and disability law. Crabtree and his partner, Lawrence Kotin, were principal draftsmen of "Chapter 766," the Massachusetts special education statute that was a progenitor of the federal special education law now known as the IDEA.