by Trey Ross, M.Ed., Esq.
Parent: “My child is failing and his teachers are ignoring his IEP. I’d like to have my child taken out of public school and placed in a private school that can better serve him. I’ve heard that I can get the school district to pay for his private school education; is that true?”
Brief answer: Possibly. If a public school fails to provide your child with a free appropriate public education by neglecting to implement “substantial and significant provisions” outlined in his IEP, private school placement at the district’s expense may be an option if doing so is appropriate.
- What is an IEP?
Under the Individuals with Disabilities Act (“IDEA”), States receiving federal aid must develop an individualized education program (“IEP”) for each child with a disability to ensure that it offers a free appropriate public education (“FAPE”) to all children. The IEP must be in effect at the start of each school year, it will need to consider the “academic, developmental, and functional needs of the child.”
- Is a failure to implement an IEP a denial of a FAPE?
Typically, to determine if a child has been denied a FAPE, the court will decide (1) whether the school violated the procedural requirements of the IDEA, and (2) whether the IEP is “reasonably calculated to enable the child to receive educational benefits.” The latter requirement generally protects a school from liability if its actions further the child’s education even if the education received is not the finest.
However, when a school unilaterally chooses not to implement significant provisions of a child’s IEP (i.e. when it violates the procedural requirements of the IDEA), the court has held that a FAPE is denied regardless of whether the child was resilient enough to receive some educational benefit.
Thus, a FAPE requires that instruction be catered to the child’s IEP. However, a failure to implement all the provisions of the IEP is not a denial of FAPE since a FAPE is denied only if the school fails to implement “substantial and significant provisions” of the IEP.
For example, in Manalansan, a first-grader with physical impairments that limited his ability to maintain balance while walking received an IEP which specified that he was to be aided when traveling through the school building. The school was also to provide the child with adult aides to assist him in a number of ways. However, the aides often came to school late, left early, and were frequently absent. As a result, the child was seriously injured when he was knocked to the ground by a group of children as he was going to his locker.
The court held that the presence of an aide was a substantial and material provision in the child’s IEP since the IEP mentioned that services could not be rendered without the help of an aide. In essence, the school said that an aide was necessary to provide a FAPE, and the court determined that failure to provide an aide constituted a denial of a FAPE even if the child managed to learn without the aide.
Moreover, if a public school denies a FAPE, the court may decide that the parent is entitled to enroll the child in a private school at the public’s expense. See Section C below.
- Private school placement: Compensatory Education
A court may only award a parent with compensation for a private school education if (1) the public school is unable to meet significant provisions of the child’s IEP and thus incapable of providing a FAPE, and (2) a private school can meet the provisions of the child’s IEP thereby making placement in a private school appropriate.
For example, in School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts (“Burlington”), the US Supreme Court held that reimbursement of private school expenses was the appropriate remedy for the public school’s failure to provide a FAPE. In Burlington, a child qualified for special education services but a specialist stated the child required education in a “highly specialized setting for children with learning handicaps . . . such as [the state-approved private school].” Since the child’s public school was unable to meet his specific learning needs and the private school could, the child was enrolled in the private school at the public’s expense.
Failure to follow the all of the requirements of an IEP will not necessarily give you a right to have your child placed in private school at the public school’s expense. To qualify for such an arrangement, the public school must fail to provide your child with a FAPE by neglecting to implement significant provisions outlined in the IEP. Also, there must be a private school capable of providing your child with the requirements outlined in the IEP or else placement in a private institution will not be appropriate.
 20 U.S.C. §1412(a)(4) (GPO 2011) (providing that, among other things, “[a] State is eligible for assistance…if the State submits a plan that provides assurances…[that it] has in effect policies and procedures to ensure that the State…[has an IEP for each child with a disability]”); Forest Grove Sch. Dist. v. T. A., 129 S.Ct. 2484 (2009).
 Id. § 1414(d)(2).
 Id. at 1414(d)(3)(a)(iv); Forest Grove Sch. Dist., 129 S.Ct. at 2503 (providing “[a]n IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services”).
 Manalansan v. Bd. of Educ., 2001 U.S. Dist. LEXIS 12608, 41 (D. Md. 2001).
 MM v. Sch. Dist., 303 F.3d 523, 526 (4th Cir. 2002) (providing that “[t]he IDEA does not, however, require a school district to provide a disabled child with the best possible education”).
 Manalansan, 2001 U.S. Dist. LEXIS 12608 at 45 (providing “[t]he school, however, does not have the discretion to decline to implement the services listed in the IEP or decide unilaterally, without initiating an IEP meeting to institute a change, that a service listed in the IEP need not be provided”).
 Id. at at 41 (providing that “[t]he Fourth Circuit has held that ‘failures to meet the Act’s procedural requirements are adequate grounds by themselves’ for finding a denial of FAPE, apparently without an inquiry into whether educational benefit was conferred on the student despite of the procedural violation” quoting Hall v. Vance Cnty Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)).
 J. P. v. Cnty Sch. Bd., 516 F.3d 254, 257 (4th Cir. 2008) (providing that “[a] FAPE ‘consists of educational instruction specially designed to meet the unique needs of the handicapped child. . .supported by such services as are necessary to permit the child to benefit from the instruction’” quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)).
 Manalansan, 2001 U.S. Dist. LEXIS 12608 (providing “to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit” quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)).
 § 1415(i)(2)(C)(iii) (providing that a parent may bring a civil action and the court may provide relief as it deems appropriate).
 Forest Grove Sch. Dist.. 129 S.Ct. at 2488 (providing that “when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the district to reimburse the parents for the cost of the private education”).
 Id. at 129 S.Ct. at 2504 n.9 (U.S. 2009) (providing “courts may grant reimbursement under § 1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate”).
 471 U.S. 359, 361 (1985).
 Id. at 362.