← All tools

Tool 41: When the Right Placement Is a Private School on the District’s Dime: the Burlington/Carter Playbook

⚠️ CAUTION - READ THIS BEFORE YOU DO ANYTHING ELSE

Talk to a special education attorney licensed in your state BEFORE you remove your child from the public school. Not after. Before.

This is the most financially dangerous move in this book. A unilateral private placement means you withdraw your child from the public school, enroll the child somewhere you chose, and pay the tuition yourself. Then you ask a hearing officer or a court to make the district pay you back.

Understand what that means in real life:

• You front the money. Real tuition, real deposits, real transportation, often for a full school year. Nobody reimburses you up front. There is no escrow and no payment plan from the district.

• Reimbursement is not automatic. It is discretionary. A hearing officer or court may order reimbursement, and only if it finds that the district failed to make a free appropriate public education (FAPE) available in a timely manner and that the placement you chose is appropriate. 34 C.F.R. § 300.148(c). Even then, the cost may be reduced or denied on equitable grounds. § 300.148(d).

• A missed notice can shrink or end the claim. If you do not give the district the required notice, in the required way, at the required time, the cost of reimbursement “may be reduced or denied.” § 300.148(d)(1). Giving the notice costs a stamp and an evening.

• If the district made FAPE available, the district does not have to pay. § 300.148(a).

Before the removal, a lawyer can help you build a record. After the removal, a lawyer can only work with the record you already made. The order of operations in this tool is the whole point of this tool.

THE RULE

The starting point: if the district makes FAPE available, it does not have to pay for private school.

The Individuals with Disabilities Education Act (IDEA) does not require a school district to pay for a child’s education at a private school if two things are true: the district made a free appropriate public education (FAPE) available to the child, and the parents chose to enroll the child privately anyway. 34 C.F.R. § 300.148(a). If the district’s offer was legally sufficient and you decline it, the cost of the private school is yours. The child is still counted among the parentally placed private-school children whose needs the district must address in other, more limited ways (§§ 300.131 through 300.144), but that is not the same thing as paying tuition. § 300.148(a).

So a tuition reimbursement case is almost never about whether the private school is good. It is about whether the public program was legally adequate. Disagreements about whether the district made FAPE available, and the resulting reimbursement question, are resolved through the due process procedures. § 300.148(b).

When reimbursement becomes possible.

A court or a hearing officer may require the district to reimburse parents for the cost of enrolling a child in a private preschool, elementary school, or secondary school without the district’s consent or referral, if the decision-maker finds both of the following:

• The district had not made FAPE available to the child in a timely manner before the private enrollment, and

• The private placement is appropriate for the child.

34 C.F.R. § 300.148(c).

By its words, the regulation is written for a child “who previously received special education and related services under the authority of a public agency.” § 300.148(c). The Supreme Court has held that reimbursement is not limited to children who had already been receiving public special education services. Forest Grove School District v. T.A., 557 U.S. 230 (2009).

“May” means may. This is discretionary.

Read § 300.148(c) closely. It says a court or hearing officer “may require” reimbursement. It does not say “must.” A parent who proves that the district failed to make FAPE available, and who proves that the private school is appropriate, has still not automatically won a check. Reimbursement is equitable relief. The decision-maker weighs the conduct of both sides. There is no formula and no entitlement to the full amount paid. A hearing officer or court may order full reimbursement, partial reimbursement, or none.

This is why the Supreme Court has described a unilateral private placement as something parents do at their own financial risk. School Committee of the Town of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). If you withdraw your child and pay for private school, you are fronting the money with no assurance you will get it back.

The two Supreme Court cases behind this tool.

Burlington held that tuition reimbursement is an available remedy at all. When the district’s proposed program is found inappropriate and the parents’ private placement is found proper, reimbursing the parents is within the relief a court may grant. Reimbursement is not damages. It requires the district to belatedly pay expenses it should have paid all along. Burlington, 471 U.S. 359 (1985).

Carter answered the district’s most common defense. The private school does not have to be approved by the state, and it does not have to meet every requirement the IDEA imposes on public schools, in order for reimbursement to be ordered. Florence County School District Four v. Carter, 510 U.S. 7 (1993). The regulation says the same thing: “A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.” § 300.148(c).

What the private placement must be is appropriate for this child. A district cannot defeat reimbursement merely by pointing out that the school lacks state approval, lacks certified special education teachers, or does not write an IEP.

How reimbursement can be reduced or denied: § 300.148(d).

Even where a parent proves both required findings, the cost of reimbursement may be reduced or denied in these situations:

1. No notice at the last IEP meeting. At the most recent IEP Team meeting the parents attended before removing the child from the public school, the parents did not tell the IEP Team all three of the following: that they were rejecting the placement the district proposed, their concerns about it, and their intent to enroll the child in a private school at public expense. § 300.148(d)(1)(i).

2. No written 10-business-day notice. The parents did not give written notice to the district containing that same information at least 10 business days before removing the child from the public school. § 300.148(d)(1)(ii).

Count carefully. It is business days, not calendar days. Business day generally means Monday through Friday, not counting federal and state holidays. But for this particular notice the regulation specifically counts holidays that fall on a business day. §§ 300.11(b), 300.148(d)(1)(ii). And the clock runs backward from the removal, not from the private school’s tuition deadline and not from a due process filing. Notice given the day you withdraw the child is late.

3. Not making the child available for evaluation. Before the parents removed the child, the district gave the parents notice meeting § 300.503(a)(1) of its intent to evaluate the child, including a statement of the purpose of the evaluation that was appropriate and reasonable, and the parents did not make the child available for that evaluation. § 300.148(d)(2).

4. Unreasonable conduct by the parents. Upon a judicial finding of unreasonableness with respect to actions taken by the parents. § 300.148(d)(3).

These are grounds to reduce or deny. They are not automatic disqualifications and they do not bar the claim outright. They give the decision-maker a reason to cut the award, sometimes to nothing.

A caution about the word “or” in the notice rule. The regulation is written disjunctively: the cost may be reduced or denied if the parents did not tell the team at the last IEP meeting, or did not give the written 10-business-day notice. § 300.148(d)(1)(i)-(ii). Many practitioners read the two as alternative ways to satisfy one notice purpose. The text can also be read to permit a reduction whenever either one is missing. You do not want to be the case that settles the question. Do both. Say it at the meeting, and send the letter.

When reimbursement may NOT be reduced or denied for lack of notice: § 300.148(e).

The regulation divides the protections into two groups, and the difference between them matters.

Reimbursement MUST NOT be reduced or denied for failure to provide the notice if any one of these is true:

• The school prevented the parents from providing the notice. § 300.148(e)(1)(i).

• The parents had not received notice, under § 300.504, of the notice requirement in § 300.148(d)(1). § 300.148(e)(1)(ii).

• Compliance with § 300.148(d)(1) would likely result in physical harm to the child. § 300.148(e)(1)(iii).

Reimbursement MAY, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide the notice if either of these is true:

• The parent is not literate or cannot write in English. § 300.148(e)(2)(i).

• Compliance with § 300.148(d)(1) would likely result in serious emotional harm to the child. § 300.148(e)(2)(ii).

The first group is mandatory protection. The decision-maker has no discretion to penalize you. The second group is discretionary protection. The decision-maker is permitted, but not required, to excuse the missing notice. Do not plan around either group. Plan around giving the notice.

What all of this adds up to.

Reimbursement is real, it is available, and the Supreme Court has twice confirmed it. It is also conditional at every step. The parent carries two findings. The remedy stays discretionary even after those findings. The district has four separate paths to argue for reduction, and only some of those paths have hard exceptions.

WHY IT MATTERS

The money. Private special education day placements commonly run from tens of thousands of dollars a year into six figures for residential programs. You pay that out of savings, a home equity line, family loans, or a payment plan with the school. If you win, you are paid back. If you lose, that money is gone and you still owe your lawyer.

The time. You file a due process complaint (§ 300.507). The district gets a resolution period, generally 30 days, before the hearing timeline runs (§ 300.510(b)). The decision generally must issue within 45 days after that period ends (§ 300.515(a)). Either side may appeal, and appeals add months. Meanwhile you are still writing tuition checks.

The stakes if you do nothing. This is the other half of the honest picture. A year in a program that does not work is a year that does not come back. Congress made reimbursement available because some districts do fail some children. The point of this tool is not to talk you out of it. The point is that if you do it, you do it in the order that preserves the claim.

The cheapest step in this process is a letter. It costs a stamp and an hour of your evening. Skipping it hands the district an argument it did nothing to earn.