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Tough choices for special education parents: Can you win reimbursement for private schooling?

Courts are deciding when public schools fail and must pay for private programs

Parents raising children with learning disabilities and other physical or cognitive limitations have to make a million difficult choices. One of the biggest is whether to keep a child in a public school special education program, or move to a private program that addresses certain disabilities.

This raises yet another big question that speaks directly to your family’s financial well-being: If you transfer your child from public school, will the school district reimburse you for the cost?

After all, federal law says public schools must provide a free and appropriate education to students with disabilities. The key to winning reimbursement for a private program is showing that the school district’s offerings failed to meet this standard for your child.

Making this determination is where things get extremely complicated.

If your child has shown even a little progress in public school, is that enough to declare the school district is doing its job? Or, does the district have to reach a higher standard?

At our special education law practice in Cleveland and around the country, the question of shifting to private school is one of the most prominent issues we see for students with disabilities.

Parents often find that schools aren’t following the latest research on the most effective educational strategies. They do their own research and discover better programs in reading or other learning areas that their school district isn’t using.

Cost, effort, or lack of organization get in the way of districts adopting the most effective programs available, leading parents to consider expensive private options.

With the U.S. Department of Education reporting 13 percent of public-school students enrolled in special education, this is a question that potentially could touch millions of lives.

It’s such a major issue that it was at the center of a lawsuit that just went before the U.S. Supreme Court.

Shaping Special Education Law: Is a Little Progress Enough?

The case was about a Colorado boy diagnosed with autism at age 2, who court documents identify as Drew. By the time he finished fourth grade, his parents determined he wasn’t learning.

They disagreed with the individualized education program (IEP) that the school district proposed for fifth grade. On top of that, Drew’s behavior was worsening. His parents felt they had to get him into a different environment and enrolled him in a private school for students with autism.

Then they asked the district to reimburse them for the private school cost. They argued the district failed to provide the federally mandated free and appropriate education for Drew, based on his lack of progress.

An administrative law judge (ALJ) ruled against the family. The parents filed suit in federal court, where a district court and then an appeals court upheld the ALJ’s decision. The parents appealed to the Supreme Court, which took the case, and in 2017, ruled in favor of the parents and child.

The case’s complexity included assessing the school’s reporting on Drew’s progress. Did the parents receive clear, detailed and frequent enough communication about his learning?

It also involves assessing how the school handled Drew’s behavior.

Sometimes he climbed on furniture, or other students. He hit objects in the classroom, screamed and ran away. Drew’s IEP included plans for addressing his behavior, though those plans were listed as being “drafts,” according to court records.

In past decisions, courts sometimes set the standard that schools must provide “some educational benefit” to students with disabilities. Other courts said schools have to achieve a higher, “meaningful educational benefit.”

The appeals court in Drew’s case chose the less rigorous standard of “some educational benefit.”

It concluded, based on testimony from his teacher and his mother, that he had demonstrated a degree of progress in first, third and fourth grades.

So, in Drew’s case leading up to the Supreme Court, judges decided the district was providing a viable enough education option and didn’t have to reimburse the family for the private program.

But the Supreme Court found otherwise, that a child must be making “meaningful” progress to be getting a free and appropriate public education.

You Can Get Help if a School District Denies Reimbursement

Cuddy Law Firm takes a strong interest in Drew’s case, as well as all children with disabilities.

We know raising a child with disabilities is all-consuming. It stresses families. It makes you feel isolated. It’s difficult for other people to understand.

Our driving mission is to stand up for the rights of children and families.

As you’ve seen, these situations get complicated.

Arguing the differences between “some educational benefit” and “meaningful educational benefit” requires delving into fine details of a child’s educational history.

We have in-depth knowledge of the laws at the core of education for children with disabilities: the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act.

We know how to document your child’s situation and argue effectively on behalf of your child with a disability.

If you have questions about a case like Drew’s, or any other aspect of ensuring a quality education for a child with disabilities, give us a call.

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