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U.S. Department of Education: Promoting Educational Excellence for all Americans

Placement of children by parents when FAPE is at issue (Sec. 300.148)

Comment: Several commenters recommended retaining in these regulations the requirement in current Sec. 300.403(b) that disagreements between a parent and the LEA regarding the availability of a FAPE and the question of financial responsibility, are subject to the due process procedures in section 615 of the Act.

Discussion: The provision in current Sec. 300.403(b) was in the 1983 regulations and, therefore, should have been included in the NPRM in light of section 607(b) of the Act. Section 607(b) of the Act provides that the Secretary cannot publish final regulations that would procedurally or substantively lessen the protections provided to children with disabilities in the regulations that were in effect on July 20, 1983. We will revise Sec. 300.148 to include the requirement in current Sec. 300.403(b).

Changes: Section 300.148 has been revised to include the requirement in current Sec. 300.403(b) that disagreements between a parent and a public agency regarding the availability of a program appropriate for the child and the question of financial responsibility are subject to the due process procedures in Sec. Sec. 300.504 through 300.520.

Comment: One commenter requested revising the regulations to eliminate financial incentives for parents to refer children for special education and then unilaterally placing their child in private schools without first receiving special education and related services from the school district. The commenter stated that it should be clear that a unilateral placement in a private school without first receiving special education and related services from the LEA does not require the public agency to provide reimbursement for private school tuition.

One commenter stated that proposed Sec. 300.148(b) goes beyond the Act and only applies if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to enrollment in the private school. The commenter stated that a determination that a placement is "appropriate," even if it does not meet the State standards that apply to education provided by the SEA or LEAs, conflicts with the SEA's or LEA's responsibility to ensure FAPE to children with disabilities.

Discussion: The provision in Sec. 300.148(b) that a parental placement does not need to meet State standards in order to be "appropriate" under the Act is retained from current Sec. 300.402(c) to be consistent with the Supreme Court's decisions in School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985) (Burlington) and Florence County School District Four v. Carter, 510 U.S. 7 (1993) (Carter). Under the Supreme Court's decision in Carter, a court may order reimbursement for a parent who unilaterally withdraws his or her child from a public school that provides an inappropriate education under the Act and enrolls the child in a private school that provides an education that is otherwise proper under the Act, but does not meet the State standards that apply to education provided by the SEA and LEAs. The Court noted that these standards apply only to public agencies' own programs for educating children with disabilities and to public agency placements of children with disabilities in private schools for the purpose of providing a program of special education and related services. The Court reaffirmed its prior holding in Burlington that tuition reimbursement is only available if a Federal court concludes "both that the public placement violated IDEA, and that the private school placement was proper under the Act." (510 U.S. at 12). We believe LEAs can avoid reimbursement awards by offering and providing FAPE consistent with the Act either in public schools or in private schools in which the parent places the child. However, a decision as to whether an LEA's offer or provision of FAPE was proper under the Act and any decision regarding reimbursement must be made by a court or hearing officer. Therefore, we do not believe it is appropriate to include in these regulations a provision relieving a public agency of its obligation to provide tuition reimbursement for a unilateral placement in a private school if the child did not first receive special education and related services from the LEA.

This authority is independent of the court's or hearing officer's authority under section 612 (a)(10)(C)(ii) of the Act to award reimbursement for private placements of children who previously were receiving special education and related services from a public agency.

Changes: None.