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Supreme Court Affirms Private School Reimbursement Option Under the IDEA

By Mary S. Gerbig

On June 22, 2009 the U. S. Supreme Court confirmed that parents can seek reimbursement for the cost of private tuition under the Individuals with Disabilities Education Act (IDEA) even if their children have not previously received special education services through a public school. Forest Grove Sch. Dist. vs. T. A., 109 LRP 36046 (U. S. 2009). The Supreme Court held that the IDEA’s reimbursement provision does not preclude a court’s broad authority under the IDEA to grant relief as it determines appropriate, including private school tuition reimbursement. The Court recognized that conditioning private school tuition reimbursement on a student’s prior receipt of special education services through the public school would “immunize” school districts for their failure to comply with the IDEA “child find” requirements to identify students eligible for special education services under the IDEA.

The Supreme Court recognized that the 1997 IDEA Amendments included a specific provision related to tuition reimbursement. The 1997 provision does not permit tuition reimbursement when a school district proves in a due process hearing that it provided an eligible student with a “free appropriate public education” (“FAPE”). However, the Supreme Court ruled that the 1997 Amendments did not limit the court’s broad authority to grant relief, in the event that a parent proved in the judicial process that a school district failed in its obligations to provide a student with FAPE.

The Supreme Court in the Forest Grove case affirmed a ruling by the 9th U.S. Circuit Court of Appeals and remanded the case back to the District Court to determine if tuition reimbursement is appropriate. The 9th Circuit District Court will now determine if the school district failed to appropriately identify the student as eligible for special education service (IDEA “child find” and evaluation requirements) and provide appropriate publically funded special education services (FAPE obligation). In that event the court can consider awarding the parent reimbursement for private school tuition.

This decision does not give parents an absolute right to reimbursement of private school tuition. Parents must still prove in a due process hearing that the school district failed to provide a free and appropriate public education and that the private placement is appropriate such that a judicial award of private school tuition reimbursement is appropriate.

The student in the Forest Grove case had been diagnosed with ADHD and had been evaluated twice by the school district. The district concluded that the student did not qualify for special education services, although it acknowledged that the student had been diagnosed with ADHD. Justice Stevens concluded that the IDEA procedural safeguards were not enough protection for the student and his parents. Justice Stevens noted, “This case vividly demonstrates the problem of delay, as respondent’s parents first sought a due process hearing in April 2003 and the District Court issued its decision in May 2005 – almost a year after the respondent graduated from high school.” The decision recognizes a parent’s right to pursue private education and remain eligible to seek reimbursement, even if a school district determines the student is not eligible for special education.

In light of this decision, school district administrators should review with staff, steps for effective implementation of child find policies and conduct full evaluations particularly in cases where the parents and district disagree on the question of eligibility. As a reminder, child find obligations continue for students through the school age years. School staff should be cautioned to remain alert for not yet identified, but potentially eligible students in the middle school and high school years.

If you have questions regarding the information in this article or special education issues please contact Mary S. Gerbig in our Green Bay office at or (920) 431-2242 or contact your Davis & Kuelthau, s.c., attorney.