Special Ed Law 101- Part IV Unilateral Placements

Special Ed Law 101- Part III Unilateral Placements

As we saw in the Tom F. case before the Supreme Court, among the relief that a due process hearing officer may award is reimbursement for a unilateral placement by the parents. 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 (and hearing officers) 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 and hearing officers 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 and hearing officers may award reimbursement in these cases. Carter, supra.

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, Section 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, Section 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, Section 612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, Section 612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, Section 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, Section 612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, Section 612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, Section 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, Section 612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. Section 300.148.