Susan Foley, Attorney At Law
Your resident school district (the district that your home is in) owes your special-education child an education that allows him/her to benefit. The Supreme Court has ruled (in a case referenced as “Rowley,) that a school district owes special-needs students a program that allows the child to benefit. Benefit means that children should make academic progress and that there should be positive socialization. So, if you have thrown in the towel trying to get your school district to provide an education that provides academic progress and beneficial socialization, what do you do next? You have the right to place your child in a private school and seek reimbursement, from the district, for the costs associated with the private placement. If you want to exercise your right to seek reimbursement from your school district, then you should provide a 10-day Notice letter. Even if you are not sure that you will seek reimbursement, you should provide the letter, to reserve your right to seek funding from your school district.
You also have the right to place your child in private school if your child should qualify for an IEP, but the district will not make your child eligible for an IEP. In both cases, the following steps can be taken:
1. Find a private school for your child. Apply and have your child accepted at the private school;
2. Prepare a 10-Day Notice Letter to the District.
There is no magic or special skill required to prepare your 10-Day Notice Letter. Please see sample 10-day notice letter at the end of the article.
This letter should be hand delivered to your school district office with a copy stamped ‘Received’ for your file. It should be kept in a safe place for future use.
At this juncture, your district may or may not respond. The response from your school district could be a letter entitled “Prior Written Notice” and restates what the district offered your child (that you have rejected via your 10-Day Notice letter) and that the district believes the offer constitutes a free appropriate public education (FAPE) for your child. The letter will feel like a denial of your claim for reimbursement, but, technically, you have not made a claim, you have just placed the district on notice. If that is the response you receive, file it with the copy of your 10-day notice letter.
If the letter from the district includes a statement that states that the district wants to hold an IEP-Team meeting, you should cooperate in scheduling an IEP meeting so that you can attend. Or, you may just receive a Notice of Meeting for a specific date and time. Attend the district scheduled IEP-Team meeting. If the district sends you an Assessment Plan so that they may test (or re-test) your child for the purpose of holding a more informative IEP meeting on their part, sign the Assessment Plan and return it to the district within 15 days of receiving it.
Attend the IEP meeting and seriously consider the school district’s offer; it may be the same offer that your rejected or, it could be very different than previously offered. Sign that you attended the meeting. You do not have to sign that you agree with the offer if you do not believe it will allow your child to benefit from his/her education (academically/socially).
If your original dispute was whether or not your child qualified for an IEP, and the district finally qualifies your child and offers your child an IEP, but does not offer the placement and services that you believe he/she needs in order to benefit from an education, state on the signature page: “I agree that my child is eligible for an IEP as offered by the district, but I do not agree that my child will benefit from the offered program. My 10-day notice of unilateral placement continues and I shall seek reimbursement for costs associated with the private placement.”
If the district offers what is called an Individual Service Plan (ISP), do not agree that your child is entitled to an ISP. An ISP is for privately placed children that parents are NOT seeking reimbursement from the resident-district. Do not sign agreement on an ISP.
If an IEP is offered that still does not meet your child’s needs, you may send a second letter that re-iterates your first 10-day notice letter.
You should sign that you attended the IEP-Team meeting. You are entitled to a copy of the IEP document that sets the new offer out clearly. (Write “Attendance Only” next to your signature.)
At this point you proceed to obtain a private education for your child. You pay for it and save all invoices and proof of payment (cancelled checks, credit card receipts.) The statute of limitations to seek a remedy from the district is two years. Therefore, approximately 18 months after you provided the 10-Day Notice to your school district, you should prepare to file for hearing by gathering the following documents:
1. Copies of all invoices for all educational expenses for the past two years;
2. Copies of proof of payment in the form of cancelled checks (front and back of check provided to you by your bank that shows the check was cashed or deposited into the educational/therapy entities’ bank account, thus, proof of payment);
3. A short description of the private school attended or literature from the private school;
4. Reports cards, reports, from private school or speech therapist and/or occupational therapist. Note: you are not required to provide reports that are not already in existence.
You do not have to wait the 2-year statutory period to seek reimbursement. You may seek a remedy sooner if you need to, but it is best to allow some time to pass so that you are certain that your child is successful at the private school.
Susan Foley has 15 years of experience helping families with special needs obtain appropriate educational services for their children. She is a member of the Council of Parents, Attorneys & Advocates (COPAA); and the San Mateo County Bar Association. She has extensive knowledge and experience with IEP meetings, consultations, mediations, due process hearings, appeals, and disciplinary matters.
A sample of a 10-day Notice Letter is shown below:
123 Oak Street
Any Town, CA 92121
January 1, 2015
Director of Special Education VIA HAND DELIVERY
Of your school district
Re:Notice of Unilateral Placement of Johnny Smith
Dear Mr./Ms. Director :
After careful consideration of the district’s IEP offer and implemented IEP, this is to provide Notice to the School District that Johnny will be unilaterally placed at a private school since the district did not offer an IEP that will meet his unique-educational needs. Johnny continues to require an educational program that provides:
[List what your child requires in order to benefit from his education.]
The district’s current offered IEP will not meet Johnny’s needs as described above.
We shall seek reimbursement for all costs associated with Johnny’s private placement, from the district, in the future.
Sign the letter.
(You may change the letter for the situation when you are attending the public school placement but supplementing it with private services and apply all of the same rights to seeking reimbursement for privately procured special-education services.)
If the district has not made your child eligible for an IEP, simply state that instead of rejecting the offer, i.e., “Johnny requires an IEP in order to benefit from his education. The district has refused to offer Johnny and IEP.”