News & Views - Oct,
1995 Issue #36
RETROACTIVE REIMBURSEMENT FOR
PARENTS' UNILATERAL PLACEMENT
IN PRIVATE SCHOOLS:
WHAT IS THE CURRENT LAW?
By: Brooke R. Whitted, Esq.
FORAN & SCHULTZ
(312) 580-2600 (Fax)
(312) 372-7901 (24 hour Pager)
Prior to the Burlington case, it was very difficult for parent advocates
to argue that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case
was decided. A few of the very unusual things about the Burlington case are (1) it was a unanimous U.S. Supreme Court decision and
(2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this article might be aware, unanimous Supreme Court
opinions do not occur all that often, and Mr. Justice Rehnquist was not known for his sympathies toward protected groups. These two
factors make the Burlington opinion all that much more powerful.
The Burlington opinion involved the parents' unilateral placement in a facility,
in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only
prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of
this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other
words, the provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational
setting for his or her child, effects a unilateral placement in an appropriate facility.
There was a caveat in the case. Where an appropriate education is shown
to have been made available by the district at the time the unilateral placement was made by the parent, the parent then must place
the child in a non-public location at his or her own expense. This tracks precisely with the provision in the regulations at 34 C.F.R.
300.403(a) which states,
If a child with a disability has FAPE available and the parents choose
to place the child in a private school or facility, the public agency is not required by this part to pay for the child's education
at the private school or facility.
Once the Burlington case was decided, those of us in the field of parent
advocacy were most pleased to advise our clients that this remedy was available, as long as the facility chosen by the parent met
the standards of the state in which retroactive reimbursement is sought. In Illinois, for example, the state statute provides for
the state board to maintain an "approved" list of placements which have met certain state standards. In Indiana, there is no such
list and if the proper approvals are obtained in a particular case, any reasonably appropriate facility may be used. States do vary,
but advocates did make attempts to steer their clients to "state approved" facilities.
In 1993, Justice Sandra Day O'Connor delivered the Carter opinion. In this
case, the pupil in question Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the school's recommendation
was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire
school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held (against the
parents) that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but
this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the
school in 1988.
In 1986, two years before Shannon's graduation, the parents filed suit to
challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent
expert to evaluate Shannon's progress and gave great weight to the findings. It was found that she had made "substantial progress"
even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed
to the goals designated in the IEP.
The appellate court affirmed that the private school was "appropriate,"
and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were
not procedural but substantive in nature. A challenge to the substantive basis for the IEP becomes a battle of experts and it is best
to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also
The Supreme Court, after reviewing the appellate court and trial records,
delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private school's program was reasonably
calculated to enable the child to receive educational benefits under the Rowley test; and (3) that retroactive reimbursement
to parents when an IEP is found to be inappropriate does not require placement in a state approved program.
In somewhat acid tone, Justice Sandra Day O'Connor asked why courts should
leave the job of "approval" in the hands of the very agency that violated the plaintiff's rights in the first place.
Remember also that this decision was unanimous, as was Burlington, which
was heavily quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal"
and placement of their child in a non- approved private facility when a district's IEP is inappropriate. The Court explained that
"approval" requirements do not make sense in the context of a parental placement. Note also here that the private school is in fairly
extreme non-compliance with any state standards. Two faculty members were not state certified, they didn't write IEPs, and the State
of South Carolina kept no list of approved private schools but "approves" them on a case by case basis. However, it was pointed out
by Justice O'Connor that public school officials had previously placed three children at the school.
The final holding of the Court is instructive. As support for the proposition
that parents need not seek state cooperation in the form of state approval of the parents' placement, she noted that "such cooperation
is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.
CONCLUSION Where retroactive reimbursement is involved, and (1) the
facility is ultimately held to be appropriate while (2) the district's proposed IEP is held to be inappropriate, no state
approval may be imposed. However, for prospective placements of disabled children by school districts pursuant to the required multidisciplinary
process, the placement must meet state "approval" requirements.
Copyright © 1995, Woodbury Reports, Inc. (This article may be reproduced
without prior approval if the copyright notice and proper publication and author attribution accompanies the copy.)