Parent’s Untimely Notice Does Not Automatically Bar Tuition Reimbursement Claim
By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.
One of the most common scenarios giving rise to special education litigation is a due process petition filed by parents against their school district in order to seek tuition reimbursement for the costs of a private school, after the parents have unilaterally placed the child in the out-of-district placement. Bringing a motion to reduce or deny tuition reimbursement, if it can be shown that the parents failed to timely provide the notice, has traditionally been one of the simplest and most effective defenses a school district can assert in defending such a unilateral placement claim. However, a recent unpublished ruling of the federal District Court of New Jersey may signal a willingness on the part of the courts to complicate the analysis by bringing equitable considerations into play.
The Individuals with Disabilities Education Act (“IDEA”) provides that a claim for tuition reimbursement “may be reduced or denied” if “at least 10 business days . . . prior to the removal of the student from the public school, the parents did not give written notice to the district board of education of their concerns or their intent to enroll their child in a nonpublic school.” N.J.A.C. 6A:14-2.10(c); 20 U.S.C. § 1412(a)(10)(C)(iii). However, H.L. & J.L. v. Marlboro Township Board of Education, No. 16-9324 (D.N.J. November 14, 2017), a federal judge recently held that failure on the part of a parent to provide the above notice does not constitute an automatic categorical bar to reimbursement.
The District Court reviewed the ruling of an administrative law judge (“ALJ”) who had dismissed the parents’ due process petition for failure to provide timely written notice of their intent to unilaterally place the child. The student was enrolled in the private school on July 9, 2015, but the parents did not notify the school district of their intention to seek tuition reimbursement until August 12, 2015. As a result, the ALJ dismissed their tuition reimbursement claim in its entirety. On appeal, the District Court upheld the ALJ’s finding that the family’s letter of June 25, 2015 requesting an intake appointment at the placement did not meet the requirements for notice, since it failed to indicate any intention by the parents to seek tuition reimbursement from the district. However, the District Court ultimately reversed the per se dismissal of the petition and remanded the matter back to the ALJ for a determination of whether the equities of the case “warrant a wholesale denial of Plaintiffs’ claims for reimbursement, as opposed to [merely] a reduction in the cost of reimbursement.”
Noting that the IDEA and the applicable state regulation made reduction or denial of tuition reimbursement discretionary rather than mandatory, the District Court reasoned that the ALJ in Marlboro had failed to set forth his reasons for finding that the parents’ failure to provide timely notice warranted a complete reduction of tuition reimbursement. In doing so, the District Court remanded the case back to the ALJ for an “equitable analysis” of “the extent to which Defendant was prejudiced by receiving late notice of Plaintiff’s decision.” The court also found that the parents’ failure to provide the notice was not a per se bar to any claim they might assert for compensatory education for any period of time in which the child was not provided with his right to a free and appropriate public education while attending school in the district.
While this case is not precedential, a requirement that equitable considerations be balanced and there be a showing of prejudice from the lack of notice would have a strong potential to undercut the effectiveness of this defense for school districts. Districts that foresee unilateral placements by parents who may be dissatisfied with educational services being provided in-district would do well to document prejudice that could result from a failure on the part of parents to provide the required notice. While the court did not provide much guidance on what would constitute adequate prejudice justifying a complete denial of tuition reimbursement, in most cases, the prejudice to the school district would likely take the form of the child study team being prevented from addressing the parents’ concerns through amendments to the child’s individualized education program or prevented from adequately exploring whether the private school would be appropriate for the child prior to the parents making the unilateral placement.
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