Law and Rights
By Michelle Ball, California Education Attorney for Students since 1995
Recently, the Ninth Circuit Court affirmed the United States District Court for the Central District of California's decision in CB v. Garden Grove Unified School District (2009). This case (hereinafter "Garden Grove") addresses the issue of parent reimbursement for placement of a special education student at a non-public agency. The affirmation solidified further the rights of parents to be repaid when a public school district does not offer a Free and Appropriate Public Education (FAPE).
It is yet to be seen whether this decision will be appealed to the United States Supreme Court, but for now, Garden Grove stands for/reconfirms the following propositions:
1) If a District fails to provide FAPE, full reimbursement may be sought by the parents.
2) Such reimbursement may be sought even if the parents place a student with a non-public agency, rather than a non-public school.
3) The test for reimbursement of a private placement hinges on whether the placement was "reasonably calculated to provide ...educational benefit" not the location of the placement. (655 F.Supp.2d at 1099)
4) To prove a denial of FAPE, procedural errors are not enough unless they impeded the student's right to FAPE, caused a deprivation of educational benefits, or significantly impeded the parents' opportunity to participate in the IEP process (Garden Grove decision quoting 20 United States Code section 1415(f)(3)(E), 655 F.Supp.2d 1093).
5) No IEP violation may be shown unless there is a material failure to implement the IEP, (Garden Grove quoting VanDuyn v. Baker, 9th circuit 2007, Id.).
6) Lack of FAPE in this case was shown by the following:
- Failure to provide speech and language services (SLS) as required by an IEP.
- Failure to develop goals to address auditory processing needs and anxiety.
- Failure to include Occupational Therapy (OT) services in the placement offered.
- Failure to include general education time as the student's offered placement was to be in a more restrictive setting (special day class- SDC).
- Failure to explain why a SDC was more appropriate than the previous placement.
The Ninth Circuit's upholding of the Garden Grove decision is one more positive mark for parents and students. It supports parents rights to place a special needs student in private school and seek reimbursement if FAPE is not offered by the public school district.
Seeking reimbursement can be a risky proposition, and had the family not won, they would have been out the entire tuition cost (over $40,000), so be sure you dot your i's and cross your t's, as they say, prior to moving to that realm. However, if they mess up and you proceed wisely, you may be able to get paid back for a private school placement you make.
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Law and Rights
IDEA Court Case - C.B. v. Garden Grove - Upholding Parents Right to Reimbursement for Private School Placement
By Michelle Ball, California Education Attorney for Students since 1995
Recently, the Ninth Circuit Court affirmed the United States District Court for the Central District of California's decision in CB v. Garden Grove Unified School District (2009). This case (hereinafter "Garden Grove") addresses the issue of parent reimbursement for placement of a special education student at a non-public agency. The affirmation solidified further the rights of parents to be repaid when a public school district does not offer a Free and Appropriate Public Education (FAPE).
It is yet to be seen whether this decision will be appealed to the United States Supreme Court, but for now, Garden Grove stands for/reconfirms the following propositions:
1) If a District fails to provide FAPE, full reimbursement may be sought by the parents.
2) Such reimbursement may be sought even if the parents place a student with a non-public agency, rather than a non-public school.
3) The test for reimbursement of a private placement hinges on whether the placement was "reasonably calculated to provide ...educational benefit" not the location of the placement. (655 F.Supp.2d at 1099)
4) To prove a denial of FAPE, procedural errors are not enough unless they impeded the student's right to FAPE, caused a deprivation of educational benefits, or significantly impeded the parents' opportunity to participate in the IEP process (Garden Grove decision quoting 20 United States Code section 1415(f)(3)(E), 655 F.Supp.2d 1093).
5) No IEP violation may be shown unless there is a material failure to implement the IEP, (Garden Grove quoting VanDuyn v. Baker, 9th circuit 2007, Id.).
6) Lack of FAPE in this case was shown by the following:
- Failure to provide speech and language services (SLS) as required by an IEP.
- Failure to develop goals to address auditory processing needs and anxiety.
- Failure to include Occupational Therapy (OT) services in the placement offered.
- Failure to include general education time as the student's offered placement was to be in a more restrictive setting (special day class- SDC).
- Failure to explain why a SDC was more appropriate than the previous placement.
The Ninth Circuit's upholding of the Garden Grove decision is one more positive mark for parents and students. It supports parents rights to place a special needs student in private school and seek reimbursement if FAPE is not offered by the public school district.
Seeking reimbursement can be a risky proposition, and had the family not won, they would have been out the entire tuition cost (over $40,000), so be sure you dot your i's and cross your t's, as they say, prior to moving to that realm. However, if they mess up and you proceed wisely, you may be able to get paid back for a private school placement you make.
Best,
Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/
Blog: http://edlaw4students.blogspot.com/
Twitter: http://twitter.com/michelleaball
Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.! This blog may not be reproduced without permission from the author and proper attribution of authorship.
- Education After Expulsion: Are Students Still Allowed To Go To School?
By Michelle Ball, California Education Attorney for Students since 1995 Expulsion from school can be devastating for students. The expelled child may not be able to return to a regular school, is denied access to district or school activities, and...
- School Districts Must Revise Iep Annually Or They May Not Be Providing A Free And Appropriate Education
By Michelle Ball, California Education Attorney for Students since 1995 In the Ninth Circuit Court of Appeals decision Anchorage School District v. M.P. (July 19, 2012, No. 10-36065), the Court ruled that the lack of an updated annual IEP (Individualized...
- Special Education Agencies With Acronyms Parents Should Remember - Oah, Cde, Ocr, Osep, Area Boards
By Michelle Ball, California Education Attorney for Students since 1995 There are so many special education resources for parents, I thought I would briefly explain just a few and provide links for parent use. 1) OAH- Office of Administrative Hearings:...
- The Four Letter Word In Special Education: "best"
By Michelle Ball, California Education Attorney for Students since 1995 It does not cross the minds of most parents that certain language related to special education is somehow "bad," or that using a single word in the quest for services could cause...
- What Is A Manifestation Determination And Why Is It So Important?
By Michelle Ball, California Education Attorney for Students since 1995 When a special education student is placed up for expulsion and/or a change of placement is recommended due to a conduct violation, school districts are mandated to convene a meeting...