First, what is a unilateral placement? It is a self-help mechanism that parents utilize when the school district (the "District") is not providing their child a free appropriate public education (FAPE) and the parents believe that a private placement would provide the child FAPE. Instead of waiting for the District to agree to fund the placement, Parents pay out-of-pocket for the placement and try to seek reimbursement from the District.
Whether or not the Parents are entitled to reimbursement is a complicated legal question. The notice to the District must meet certain procedural requirements. I would NEVER recommend a unilateral placement without working with a special education attorney or a seasoned special education advocate. If Parents' notice is not sufficient, they are not entitled to reimbursement. Even if the request if procedurally valid, a unilateral placement is financial risky. Reimbursement is only warranted if the IEP at the time of the unilateral placement does not provide FAPE and the out-of-district placement does. Reimbursement might also be confined if the District later offers an IEP that does provide FAPE. BEFORE a parents decides to unilaterally place their child, it is very important to a comprehensive case analysis by an experienced special education attorney. This is best way for you to optimize your chances of recouping your expenses. If you are considering a unilateral placement, contact the North Shore Massachusetts Law Firm of Lillian E. Wong.
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 The law requires public schools to provide a Free Appropriate Public Education to all children. This means that if your child's needs cannot be met in the public school, the school district must pay for your child to attend a private school that meets your child's needs (a "private placement"). If parents and schools disagree about what placement meets the child's needs, the dispute can be resolved in a number of ways. One way is for a hearing officer to decide what placement is appropriate. This is an all or nothing approach. Either the school is right or the parent is right. If the parent is right, the school must fund the private placement in full. But hearings can be expensive, stressful, and most importantly risky - even if you have a strong case, there is no guarantee that the hearing officer will agree. This is why many special education disputes are resolved in settlement agreements. Sometimes, these settlement agreements provide for cost-sharing, meaning that parents and the school both pay for a portion of the private placement. Cost-sharing is a particularly good idea if the parents' case for a private placement is not a "slam-dunk." Cost-sharing is also a good option if the parents and school agree that the child needs a private placement, but will disagree over the particular school. Usually the school's choice is less expensive than the parents'. In this scenario, parents can offer to make up the difference between the school's offer and their preferred placement. Of course, cost-sharing is only a viable option for parents who can afford it. That said, cost-sharing can provide a cost-savings for parents. Cost-sharing can expedite the settlement process, leading to lower attorney's fees and settlement-related costs. Even parents who cannot afford a traditional cost-sharing option should not ignore the cost-sharing . Instead, those parents should consider applying for grants, scholarships, and financial aid to help fund the private placement. Remember - any way you can lessen the financial burden on the school, the better your chances to obtaining an appropriate placement for your child. If you want to request a private school (out-of-district) placement at public expense, contact a Massachusetts special education lawyer for help navigating this complex progress.  When it comes to due process hearings, parents are disadvantaged. Schools always hire attorneys to represent them, but most parents cannot afford legal representation. Schools are repeat-players in the due process game, while most parents have never filed for a hearing and don't know what to expect. If parents are successful at hearing, the law mandates that schools reimburse parents for their attorneys' fees. Currently, expert witness fees are not reimbursable, even if parents prevail at hearing. Expert witnesses fees can be expensive. Most experts I've worked with charge around $200/hr and most hearings require many hours of an expert's time. Expert witnesses are also essential for winning a special education case. On March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act. The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX). The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities. Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts. If you are looking for a special education advocate in Massachusetts, contact Boston area attorney Lillian E. Wong today.  When it comes to School vs. Parent legal disputes, it's not a fair fight. Schools budget for education legal services, parents do not. Schools have attorneys on retainer, parents do not. Schools are ALWAYS represented by lawyers at due process proceedings. Most parents find it extremely difficult to afford representation. Are you interested in how much your school district is paying their attorneys for special education representation? It's all there in your school committee budget. The budget also contains information about the number of students in out of district placements, how much the school is spending on assistive technology, and a lot of other interesting information. If you are looking for a special education help in Massachusetts, contact Boston area lawyer Lillian E. Wong today.  I recently came across this article in my copy of Parenting magazine. While I applaud the magazine for addressing learning disabilities, I was disappointed with the advice. In the article, a mother of a child with learning disabilities asked the magazine financial expert, "My son has been diagnosed with learning disorders. A special school could help him -- but it costs $7,000 a year. That's about what we have budgeted for savings and chipping away at our debt. Should we do it?" While the expert did indicate that public funding for the school may be available, that was not the main focus of her answer. My Response: As a special education attorney, I think it is very important to emphasize that if a child needs to be educated in a special school it is the school district's legal responsibility to pay for the tuition. Navigating special education law can be confusing, especially when advocating for private placements. It is a good idea to contact a special education lawyer who can consult with you about the process and assess the strength of your case.  The Massachusetts Department of Public Health will hold public hearings on their proposed deep changes to early intervention programs, including increased parent participation fees of 6x (600%), eligibility requirements raised to 40% delay (instead of 30%), and as much as 50% delay in expressive language. Hearings on the following dates: Thursday, February 25th (Western Region) 1:30-3:30 p.m., DPH23 Service Center, Northampton Monday, March 1st (Eastern Region) 10:00 a.m. -1:00 p.m., Department of Public Health, Boston.  Last year, Massachusetts cut state aid for special education by $90 million or approximately 40 percent. The governor’s proposed state budget for this year cuts special education funding by $5 million. How will this affect Massachusetts's parents and their children? Schools will be forced to tighten their proverbial belts. Schools districts will be reluctant to indentify children in need of special education. Districts may fight private placements more vigorously. One-on-one aide positions may be cut, and remaining aides will be responsible for more children. Officials may be less likely to suggest assistive technology for those children who may benefit from it. But while special education budgets are challenged, the laws protecting students remain the same. If schools fail to provide children with a Free and Appropriate Education (FAPE) in the Least Restrictive Environment (LRE) they will be violating the law. These violations could lead to costly litigation and more importantly, lost educational opportunity to many of Massachusetts's children.  The Maine Department of Education ("DOE") is proposing changes to their special education guidelines. The Maine DOE claims they are troubled by the variation in special education identification and explain that Maine currently provides more special education protections than required by federal law. Officials admit that these changes are motivated, at least in part, by budgetary concerns. Their proposed solution is to streamline special education identification procedures and to eliminate any protections not required by federal law. But will this "streamlining" result in non-identification of children who should benefit from the Individuals with Disabilities Education Act (IDEA)? One thing is certain: these new guidelines will provide Maine children in special education will have less legal protection. For example, in Maine, as in Massachusetts, transition planning begins when the child is 14, two years earlier than federal law requires. But now, the Maine DOE would like to begin transition planning at 16. And Maine doesn't seem to be the only government cutting back on special education protections. I recently came across a similar report about a school district in New Hampshire making changes similar to Maine. Will we see this trend in Massachusetts? Stay tuned.  When parents request a necessary, but expensive program or service for a child the school district often claim that they don't have the funding. This response has become even more prevalent during the current economic recession. Not only is this excuse impermissible under the Individuals with Disabilities Education Act (IDEA), it may not be true. A recent Wall Street Journal article reports that school districts have been "redirecting" millions of dollars meant for special education students. What's more, President Obama has increased IDEA funding by $11.3 billion for the next year. The bottom line: if your child has a disability covered by IDEA your child is entitled to a Free and Appropriate Education (FAPE). Cost should never be a factor. |
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It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Brown v. Board of Education, 347 U.S. 483 (1954)
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Topsfield, MA 01983
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15 Morningside Drive
Topsfield, MA 01983
978-561-9001 (P)
978-561-1591 (F)
lwong@lillianwongesq.com
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