By Jim Gerl, Esq.
June 19, 2015
This is another installment 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.
In the case of Burlington School Committee. v. Department of Education, 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 School District 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 School District 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.
The general rule, then, is that reimbursement for a unilateral placement may be awarded where a parent/student proves the following:
- the school district denied FAPE to the student or otherwise violated IDEA;
- the parent's private school placement for the student is appropriate; and,
- equitable factors do not preclude the relief. Forrest Grove School District v. TA, 557 U.S. 230, 129 S.Ct. 2484, 52 IDELR 151 (U.S. 6/22/9).
Some interesting recent circuit court decisions have involved the second and third prongs of the analysis. For example in Sumter County School District 17 v. Heffernan ex rel TH, 672 F.3d 478, 56 IDELR 186 (4th Cir 4/27/11), the Fourth Circuit noted that LRE concerns might not be weighted as heavily in the second prong of the unilateral placement reimbursement analysis; and in RL & SL ex rel OL v Miami-Dade County School Board, 757 F.3d 1173, 63 IDELR 182 (11th Cir 7/2/14), the Eleventh Circuit ruled that where LEA had predetermined the child’s placement, it was prevented from raising the third prong equities of the Burlington, etc. analysis in order to defeat the claim for reimbursement.