“Preimbursement”

Elisa Hyman
Kim Sweet
Lisa Schweitzer

I. Development of Right to Prospective Payment for Non-approved Schools Under the IDEA

A. Right to FAPE is absolute.

B. School Comm. of Town of Burlington v. Department of Educ., 471 U.S. 359 (1985): if the public school system does not provide a student with FAPE, the district may be ordered to reimburse the parents for obtaining an appropriate education at a private school.

C. Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993): reimbursement is not limited to private schools on the State’s pre-approved list.

D. Susquenita School Dist. v. Raelee S., 96 F.3d 78 (3d Cir. 1996): court required prospective payment of tuition for non-approved school during the pendency of litigation.

E. Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998): court may order prospective payment of tuition for a non-approved school if the Burlington prerequisites are met and the parents are financially unable to front the tuition and seek reimbursement.

F. Sabatini v. Corning-Painted Post Area School. Dist., 78 F. Supp. 2d 138 (W.D.N.Y. 1999): court granted injunction requiring district to place the child in a non-approved program and make prospective payment of tuition.

II. Litigation of a Prospective Payment Case

A. Initiation of due process hearing through written request

B. Elements to be proven in a prospective payment case

1. Is the child’s recommended IEP appropriate?

2. Board has burden to prove its recommended placement, if any, is appropriate (parent must refute showing)

3. Parent must establish non-approved private school placement is appropriate

4. Parent must establish financial inability to pay tuition and seek reimbursement – standard for financial inability still being established

5. Consideration of equitable factors

C. Preparation for hearing –potential witnesses and documentary evidence

III. Considerations for Stipulations and "Rotating Carter" Resolutions

A. Distinguished from Standard “Carter” Stipulations

1. Financial Need

2. Time is of the essence – incorporate a timeframe into your agreement

B. Escrow

1. Set out responsibilities of all parties

2. Include process for return of funds

C. Standard Stipulation Provisions Proffered by NYC BOE for Prospective Relief

1. Pendency Waiver

2. Claims Waiver

3. Re-evaluation & Observation Agreement

4. Letter of Acceptance, Proof of Attendance, School Affidavit, W-9

5. Attorney Fee waiver

D. Rotating “Carter” cases

1. Standard Carter Reimbursement

2. Payment by parent on a monthly or quarterly basis

3. Roll over payment to the school

IV. Challenges Presented by a "Preimbursement" Approach

A. Effectiveness of "Preimbursement" in Securing FAPE

1. Problems with untimely payment

2. Difficulty of finding non-public schools to bear risk

3. Need for meaningful access to counsel for affected population

B. Recommendations for Improvement

1. Eliminating need for litigation in certain cases

2. Improving and increasing use of stipulations

3. Streamlining payment process within Board of Education

C. Recognition of Pendency Rights as Additional Protection for the Child

1. Pendency or “stay put” rights, established under 20 U.S.C. § 1415(j) and corresponding state regulations, exist during course of litigation

a. IDEA pendency provision - 20 U.S.C. § 1415(j)

. . . during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child . . . until all such proceedings have been completed.

b. Need to establish school as child’s “current educational placement” for pendency rights to attach

2. Trigger for creation of pendency placement

a. Decision of state review officer or stipulation between parties is sufficient to create pendency rights. See Murphy v. Arlington Central School District, 86 F. Supp. 2d 354 (S.D.N.Y. 2000), Raelee S.; cf. Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982) (stipulation with explicit limitation on time doesn’t create pendency right)

b. Unappealed decision of impartial hearing officer also should be sufficient to establish pendency. See Matthew K. v. Parkland School District, No. CIV. A. 97-6636, 1998 WL 84009 (E.D. Pa. Feb. 26, 1998); Saleh v. District of Columbia, 660 F. Supp. 212 (D.D.C. 1987); Application of a Child with a Disability, New York State Review Officer Decision No. 98-53 (Oct. 16, 1998); T.H. v. Board of Education of Palatine Community Consolidated School District 15, 55 F. Supp. 2d 830 (N.D. Ill. 1999).

3. Effect of pendency decision on prospective payment of tuition for current and future years.

D. Expansion of "Preimbursement" to Related Services Cases