Court Rules Parents Entitled to Private School Tuition Upfront

     In Mr. and Mrs. A v. New York City Department of Education , a United States District Court has ruled that under certain circumstances, when parents cannot afford to make private school tuition payments, the IDEA can require  school districts to make those payments. In this case the 14-year-old student had autism, Asperger’s syndrome, bipolar disorder, and attention deficit hyperactivity disorder and was eligible for special education services. The school district developed an IEP for the 2007 to 2008 school year but did not make a placement recommendation. The placement recommendation was referred to a different team that approved non public school placements. Unfortunately, the school district never offered a specific placement prior to the start of the 2007 to 2008 school year. So, the parents notified the district that their son would be enrolled in the Rebecca School, a private program. The parents signed an agreement with the Rebecca School to make payments for the annual $84,900 tuition. However, since the family’s annual income was  $64,000, it was difficult for them to make the payments. The student made educational progress at the Rebecca School. The parents later pursued a due process hearing to obtain the prospective payment of tuition.

     The hearing officer found that: (1) the school district did not offer an appropriate program, (2) the Rebecca School program was appropriate, and (3) ordered the school district to pay the student’s tuition. The school district appealed to a state level review officer who also found the district did not offer an appropriate program and the Rebecca School Program was appropriate. But, the state level review officer decided that since the parents had not been able to pay the tuition out-of-pocket, they were not entitled to prospective funding of the student’s tuition. The parents then filed a law suit in federal district court to obtain the tuition payments to the Rebecca School.

     The court reviewed many of the IDEA private school tuition reimbursement cases including the Supreme Court decisions in  Burlington v Dep’t of Education (1985)  and Forest Grove (2009).  Those cases establish that where parents can show: (1) the public school’s program is inappropriate (2) the private program in which the parents have enrolled their child is appropriate, then, (3) the parents can be reimbursed for the tuition they have paid to the private school.

    But, here, the school district argued that, while these cases authorize the reimbursement to parents of tuition the parents have paid, the cases do not do not authorize direct payment to the private school. The court, however, ruled that in cases like this one, where parents lack the financial resources to “front” the costs of private school tuition, the tuition can be paid directly to the private school.  The court states that: “A contrary ruling would be entirely inconsistent with the IDEA’s statutory purpose, including the goal of ensuring FAPE to the least privileged of the disabled children in our nation. Such a ruling would also be irreconcilable with decades of case law, summarized above, holding that the exercise of rights under the IDEA cannot be made to depend on the financial means of a disabled child’s parents.” 

OSEP Clarifies that RTI Process Cannot Delay-Deny IDEA Eligibility Evaluation

     Since the Response to Intervention (RTI) process was referred to in the IDEA regulations as a means of  identifying a student as having a specific learning disability, there has been confusion whether school districts can require students to proceed through the RTI process before allowing an evaluation to determine a child’s eligibility for special education services. The process was confused despite the fact that the IDEA regulations at 34 CFR 300.304(b) clearly state that a parent can request an initial evaluation at any time and the evaluation must be completed within 60 days of the parents consent.  On January 21, 2011 the Office of Special Education Programs (OSEP) issued a Memorandum to: State Directors of Special Education clarifying that the RTI process cannot be used to delay or deny a student’s eligibility for special education services under the IDEA.

     The memorandum identifies the RTI process as a multi-tiered instructional framework that addresses the needs of all students, including struggling learners and students with disabilities. OSEP says that “With a multi-tiered instructional framework, schools identify students at-risk for poor learning outcomes, monitor student progress, provide evidence-based interventions, and adjust the intensity and nature of those interventions depending on a student’s responsiveness.”

     But the memorandum notes that “it has come to the attention of OSEP that, in some instances, local education agencies (LEAs) may be using Response to Intervention (RTI) strategies to delay or deny a timely evaluation for children suspected of having a disability.” If the school district suspects a student has a disability and the district receives a referral for an evaluation, it must seek parental consent for an evaluation within a reasonable time. 

     Once parental consent is obtained, the evaluation must be completed within 60 days. If, however, the district does NOT suspect the student has a disability, the district may deny the parent’s request. In that event, the school district must provide the parents with notice of the reasons for denying their request for an evaluation and their due process rights. The memorandum then clearly states that it is inconsistent with the evaluation procedures in the IDEA at  34 CFR 300.301 through 300.111 for a school district “to reject a referral and delay the provision of an initial evaluation on the basis that a child has not participated in the RTI framework.”

      I frequently receive calls from parents that school staff are insisting their child complete the RTI process, despite the parent’s request for an initial evaluation and despite the IDEA fairly clearly stating parents can request an initial evaluation at any time. So, it is one of my fondest wishes that this memorandum clarifies, once and for all, that school districts cannot use RTI strategies to delay or deny a timely evaluation for children suspected of having a disability.

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