IDEA’s 10 Day Notice Requirement

Published on August 6, 2009 by Jennifer Laviano

2009 year calendar

It’s hard to believe, but the new school year is almost upon us.  If you have a child with a disability, and you have decided to send him to a private school this year to meet his special education needs, you need to make sure that you have given your school district the proper “notice” of the placement if you wish to secure any funding for it.  If you haven’t already done so for this coming school year, you are losing precious time to give notice.

Parents of children with special needs may be entitled to reimbursement of private schooling under certain circumstances.

If your child is identified as requiring special education and related services through an IEP, or should be, your school district is required to offer a Free and Appropriate Public Education (“FAPE”) annually.  If FAPE is not offered, parents have a right to send their children to a private program “unilaterally” (meaning without the consent of the school and at the parents’ expense), and to then seek reimbursement for that placement under the IDEA.

Making a unilateral placement is always a risk:  you are by no means guaranteed reimbursement.

Unless your school district voluntarily settles your case, you would need to bring the issue to a Due Process Hearing.  It’s not an easy process, and often requires a special education attorney.  In fact, arguing cases to special education Hearing Officers is a large part of what I do in my law practice in Connecticut.  Before reimbursement would be ordered by a Hearing Officer, there would need to be a determination that the IEP offered by the school was not appropriate, and that the private school is.

Even if you have a very compelling case that the special education services and placement recommended by your district are not appropriate, it won’t matter much if you didn’t give proper notice.

The IDEA states that the costs associated with reimbursement

…may be reduced or denied (I) if– (aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to the child, including stating their concerns and their intent to enroll their child in a private school at public expense; OR (bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa).”  20 USC 1412

Therefore, you must give notice EITHER at the last IEP meeting OR 10 business days before removal.

Remember that the requirement is for ten business days’, not just ten days’ notice.  And while you will typically have met the notice requirements if you requested the private school at the last IEP meeting before you send your child, in my experience IEP documents do not always reflect precisely what happened at the IEP Meeting.   Sometimes, they don’t even resemble what happened at the Meeting!  Therefore, unless you have reviewed the document and it states quite clearly that you made the request for the private school at public expense, and expressed your concerns about the proposed IEP, and it reflects that it was refused by the district on the Prior Written Notice page, I would be abundantly cautious and give 10 business days’ notice as well.

There are exceptions for having to provide notice.

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If you did not, or could not, give proper notice of the private placement, all hope is not lost.  There are exceptions which might apply, and they make logical sense.  Reimbursement “shall not be reduced or denied” in the following cases:

  • The school prevented the parent from providing notice;
  • The parents had not received notice of the notice requirements (note: if you received your procedural safeguards pamphlet, you are almost always considered to have been informed of the notice requirements!);
  • Compliance with notice would likely result in physical harm to the child.

In addition to these mandatory exceptions, there are also two exceptions which are considerations that may be taken into account by a Hearing Officer or Court.  They are:

  • The Parent is illiterate or cannot write in English;
  • Compliance with notice requirements would likely result in serious emotional harm to the child.

What about a situation where you think your child required special education and related services, but your school district failed or refused to provide them?

The United States Supreme Court recently resolved any doubt as to whether reimbursement for private placement could be ordered when a student never received special education services from the school.  The case is Forest Grove School District v. T.A. and you can read more about it in another article I’ve written.  The short answer is that you may still be entitled to reimbursement of a private school even if your child wasn’t found eligible for services.  It’s a complicated legal analysis as to how the notice provisions apply to an unidentified child, and the chances are higher that you might meet one of the exceptions than perhaps for other cases (for example, you request an IEP meeting so you can give notice and they won’t convene one).  However, I would recommend that you comply anyway.

Many parents make the mistake of not notifying their school district of an upcoming private placement.

The reasons for this vary from not knowing they should, to not realizing they are even eligible for reimbursement, to embarrassment, to being in a state of crisis, to not realizing how expensive the placement might become.  I speak to parents all the time who have finally been able to take a deep breath and think about whether they could get public funding for the private school months after the child already began.  That is almost always too late.

Even if you think you may never pursue a legal claim against your district, provide notice anyway.

You may change your mind, lose your job, or realize how inappropriate your child’s previous program was once you see how they do in the private placement.  If you give notice, you don’t have to seek reimbursement, but if you don’t, you may not be able to.  Better safe than sorry.  If you want to be extremely safe, consult with a special education attorney before you assume you have, or haven’t, given notice.

7 Responses to IDEA’s 10 Day Notice Requirement

  1. Rochelle Dolim
    August 8th, 2009 | 3:46 am

    Do I still have to give notice if Private Education At Public Expense is the current placement and the course enrollment still has 10 months on it?

    Our school district split, there wasn’t time for the old district to write a new IEP with the new placement and the new district hasn’t agreed to/scheduled a meeting yet.

  2. Jennifer Laviano
    August 8th, 2009 | 9:06 am

    What a dilemma! There are a number of ways to analyze this and a lot of questions of fact I’d want to know if I was consulted on a case like that. This seems like a tricky situation (especially given the split in the districts into two districts) and I really think you need to immediately talk to a special education attorney in your state! For a list of attorneys, check out the “find an attorney/advocate” listing at http://www.copaa.org or the yellow pages for kids at http://www.wrightslaw.com. If you can’t afford counsel, call your State Department of Education and ask for their guidance. Another route might be to see if the law school/s in your State have special education law clinics, or even a family law clinic, who might be willing to help. Good luck!

  3. Jerry Davis
    April 20th, 2010 | 3:29 pm

    What about a situation where our child is currently in a private placement and has been for several years. (We went through Due Process when we first moved him). Now we would like to visit our school district to see their program before deciding which placement is appropriate, but our visit date falls after the 10 notice period. Can I submit a 10 day notice with a caveat that our placement decision may change following our visit?

  4. Jennifer Laviano
    April 20th, 2010 | 6:54 pm

    I would always consult with an attorney in your state to see what the practices are, but I think it’s best to err on the side of caution. I like the idea of submitting a letter that complies with the notice requirements but indicates the possibility of changing your mind after a visit. Provided the notice indicates 1) present intention to unilaterally place; and 2) your expectation that it be at public expense, again, I think it’s better to be safe than sorry. You can always retract your request for out of district placement if the public school program appears appropriate and accept that one. Good luck, best, Jen

  5. Jerry Davis
    April 21st, 2010 | 3:24 pm

    thanks!!! Very helpful.

  6. sheila pecot
    May 2nd, 2011 | 3:13 pm

    looking for a reputable education attorney in Louisiana – new orleans area …

  7. Jennifer Laviano
    May 2nd, 2011 | 6:40 pm

    check wrightslaw’s yellow pages for kids and COPAA’s find an attorney/advocate page!

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