Supreme Court Hears Oral Argument on IDEA Private Placement Right to FAPE

On Monday, October 1, 2007, the U.S. Supreme Court heard oral arguments in New York City Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child. The Supreme Court will decide whether children with disabilities who are placed in private schools by their parents, without first attending public school, are entitled to tuition reimbursement when the public school can not provide a free and appropriate education (FAPE).

Under the Individuals With Disabilities Education Act (IDEA), “[i]f the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate.” 34 C.F.R. § 300.148(c) (emphasis added).

Tom F. received tuition reimbursement for his son’s private school placement for two years because the school district was unable to provide his son a FAPE. Later, when the school district determined it could provide a FAPE in a public school, Tom F. requested a due process hearing. Tom F. challenged the appropriateness of the individualized education program (IEP) and placement, contending that the IEP was inappropriate and continued private placement was necessary.

A hearing officer found that the public placement was inappropriate and granted Tom F.'s request for tuition reimbursement. On appeal, a state review officer affirmed the hearing officer's decision. The school district appealed again and the U. S. District court reversed the decisions of the impartial hearing officer and state review officer, and held that IDEA does not require a school district to reimburse a parent if the child has never been enrolled in public school. The U.S. Court of Appeals for the Second Circuit vacated and remanded the decision. The Second Circuit held that the IDEA was not meant to deny reimbursement to students who have never been enrolled in public school.

If the Supreme Court affirms the decision by the Second Circuit, parents will have the right to obtain reimbursement from the public school even if the child was never enrolled in a public school special education program. Parents, however, will still be required to show that the district's proposed program was inappropriate and that the private special education program they chose is appropriate, consistent with the established tuition reimbursement remedy authorized by the IDEA.

Source: http://www.wrightslaw.com/news/07/nyc.tomf.htm
Author: TRW