IEP Unilateral Placements
One of the greatest IDEA misunderstandings among parents is the concept of Unilateral Placements. There is a lot of misinformation about them, how to do a unilateral placement and so on.
A lot of this is due to IDEA itself. It doesn’t define this right much. Unilateral Placements are mentioned in the IDEA Procedural Safeguards. And, it leaves most of the decisions up to the states.
First, look to your state’s procedural safeguards. Read what it says about Unilateral Placements.
The basic premise is this. If you believe that your child is not receiving FAPE, despite your best efforts, then you pull your child out of the public school and enroll them in a private school that will meet their needs. And, you have to give the school district 10 days’ notice.
However, you are going to have to prove denial of FAPE. And, that’s not always so easy. What is happening day-to-day, and what your paper trail says may be two different things.
Unilateral Placement Letter Template
I have literally dozens of IEP letter templates on this blog. I do not provide one for Unilateral Placement, and here’s why.
I do not feel that unilateral placement is a DIY move. I strongly recommend that you at least do a consult with an attorney before doing this. The very first question that the hearing officer is going to analyze is: “Is the school district’s IEP appropriate?”
Parents tend to let emotions get in the way of critical thinking when it comes to assessing IEP data. You might be seeing the worst results and behaviors in front of your eyes. Or regression or lack of progress. That does not mean that you have the case on paper to back that up.
Please see an attorney before you send your 10-day unilateral placement letter. The process does not begin and end with the letter. You still have to prove your case after the letter.
The hearing officer is not even going to ask the question “is the parents’ choice appropriate?” until he/she has determined that the IEP is not appropriate. You have to make sure that you have the case on paper to prove this.
So, without further ado, here is the podcast about unilateral placement.
Choosing the Unilateral Placement option is a risky move, particularly for a parent. I find that many parents know the laws “My child is guaranteed FAPE!” but aren’t really experienced in proving what FAPE or denial of FAPE looks like. If you’re a nerd like me who enjoys reading up on this stuff, here is part of a presentation from Special Ed Administrators in Illinois, and reviews case law from the 7th district.
Unilateral Placement for Special Education StudentsSession_20_Unilateral_Placement_for_Special_Education_Students_uid262017300292
10-Day Unilateral Placements with Steve Jacobson
I am embedding the podcast here, but if you wish to read the transcription, you can do that too.
Me: Okay. Let’s get into the nitty-gritty of some things. that I think there are a lot of issues and a lot of parts of IDEA and special education that are really misunderstood by parents. One of those is unilateral placements. I refer to them just as the 10-day thing. But I do see a lot of information being tossed around online that says, you know, one parent advising another, like, pull them out and enroll them in a private school. “The district has to pay!’
And I’m like, don’t please, please don’t do that. So can you explain to us a little bit about what a unilateral placement actually is and how it works and if, if a parent and this is one actually, this is another area where I recommend that parents at least consult with an attorney before doing this so that you’re not left holding the bag and, and the invoice, for tuition. So, can you explain to us if a parent is considering this or they’ve heard this advice, what it really is and how to use it?
Special Education Attorney Steve Jacobson: Absolutely. And I think you are 100% right. This is an issue that is sort of fraught with potential pitfalls and ways to kind of screw yourself as a parent. Where perhaps if you understood sort of the lay of the land better from a legal perspective, you may, you may have ended up in a different place. And I think just to comment on one point you brought up, which I think is exactly right, one thing we always tell parents too is, obviously, look, “Seek information wherever you can. Find as much information as possible about things. But it’s dangerous too.”
Put yourself in someone else’s position. Meaning as you mentioned, other parents that ‘Hey, this is what they did for me, you should go do it and this is how I did it.’ All these situations, as I probably don’t have to tell you, tend to be very fact-driven and vary case by case.
But to answer your question, okay, a unilateral placement or what we probably on the legal side more often call, a tuition reimbursement case. Basically what is happening is, as you’ve said, that a parent is unilaterally just removing their child out of the public school system for whatever reason. It is usually for what is not typically it’s just the parent who doesn’t believe the program or placement is appropriate for the child. That’s public school and you know, maybe their child’s having a lot of problems or not making progress. Whatever the case may be. Well, one of the legal landmines is potentially, and I guess maybe one way, one thing I will back up. The analysis that is going to be reviewed or is taken by someone called a hearing officer if this ever got all the way to a hearing, is as follows.
3 Factor Analysis in Unilateral Placements
It’s basically a three-factor analysis in terms of whether or not I can get the district to pay for my private placement where I have already placed my child. Okay. So that analysis is, the first thing a hearing officer would consider is, “Is the district’s IEP appropriate?”
Okay. So let’s say you’ve decided, I took out my child, I put them in X private school, I’d like to just pay for it. The district says no. Now you end up at a hearing because it can’t be resolved or whatever. Obviously we can talk about resolution or how it might settle otherwise. But let’s say you went to a hearing, the first thing the hearing officer is going to look at is, “Is the district’s proposed IEP appropriate?”
If it is, it’s the end of the analysis. It doesn’t matter.
You’re never getting to factor two, which is, “Is the parents’ school appropriate?”
So the first consideration is, is the IEP appropriate that the district offered?
If it is not, then it will go into consideration. Number two is, okay, well, is the parents’ program appropriate?
So, when you get to, let’s say consideration number two is the parents. You’ve gotten past number one, the school district, or excuse me, the hearing officer agrees with you that okay, the school district’s IEP is not appropriate.
We’re going to look at number two, what the hearing officer’s going to look at. And that granted, the threshold is not nearly as high for the private school as it was for the public school. That doesn’t have to be or there doesn’t have to be, you know, certain, built-in, legal supports and things like that. However, in order to get a hearing officer on board with you, you are going to have to show that somehow this private school is meeting a need that the school was, the public school was not.
And in general, again, I hate to broad-brush onto this, but in general, that means it has to be more than just being a small school. Because, quite frankly, most of the time private schools are smaller and most of the time most kids would do better in a smaller environment.
So that’s not going tip the scales necessarily. It’s a factor for sure, but it’s not– if that’s all you have, that’s not so ironclad. But I will say the threshold for the appropriateness of a private school isn’t that high.
But then the last consideration that the hearing officer will look at, and this is kind of, I think you alluded to this is what we call the equities. Which is a fancy way of saying the hearing officer has some discretion and can look at, ‘okay, does everybody have clean hands here was anybody, you know, kind of playing fast and loose, anybody playing games, anybody have dirty hands in this?’
Providing 10-day Notice to the School
And that’s where, for example, what you mentioned, that’s where the 10-day notice comes from. And what that means is that when a parent is going to think about pulling their child out of the public school system, they have to provide a 10-day notice to the district. (bold mine)
Okay. In general. Or they could also bring it up at the prior IEP meeting and say, look, this is my intention and I’d like the district to pay for it. I think they should, you know, I think they should fund this placement.
But let’s assume you didn’t bring it up in an IEP meeting. And, because most of the time you’re talking 10-day notice letters, the purpose really of that 10-day notice (and it’s 10 business days, by the way) is really to give the district a chance to have an IEP meeting and sit down with you and try to address whatever concerns you have.
I’m surprised that more districts don’t do it. Because, you know, unless you’re so sure as a district, your IEP is so flawless that it couldn’t be challenged. Regardless that you have a parent that has now thought it was so poor that at least, if not as written in implementation, that they’ve elected to remove their child to a private school. That it gives them an opportunity to kind of address some of these needs. And that’s really the whole purpose of it. The school district doesn’t have to do it and sometimes they don’t. But if a district is going to do it, they need to do it within those 10 days.
Me: Does a parent have to attend, I mean, let’s just say legitimately within 10 business days, they are unable to take a day off work.
Special Education Attorney Steve Jacobson: If that’s the case, anytime a parent legitimately can’t do something like that. What I would say is, I guess the short answer in that instance, if they said like, look, I’d love, you know, I’d be happy to come and I would put this in writing. I mean, happy to attend this IEP meeting, however, I can’t for whatever reason. But I, what I would say is offer alternative dates that you could, okay. Because, one of the things I always tell parents as well is you don’t want to be overly uncooperative. Okay. And, or just have the appearance that you’re just difficult generally. You know what I’m saying Like, you know, that’s you. So in the incident you described, a reasonable response is I’d like, I’d be happy to attend, but I can’t do any of the dates you just offered.
Special Education Attorney Steve Jacobson: Here’s the data I would do. Now the district might say, because you are kind of getting into some legal, procedural things that, you know, they need to kind of, you dealing with themselves with the 10 days, the, they might have it without you. I guess that’s possible. you’re taught it’s a very gray area decision now because if the district’s not sure what is wrong anyway, but more often than not, what I find is that a parent is either saying, well, why should I come You know, and that’s where we’ll say you’re always, if you can go, you go. Because then you can say, well look, I was happy to hear what they had to say and quite frankly, look if, if they could do this IEP or proposed as I implement this IEP, okay, I’d be happy to have my child in the district.
But you know, for whatever reason, I don’t believe you can. the same holds true with, you know, I would say with sort of a related thing, sometimes parents will say, look, you know, they propose different programs or placements. I did, I refuse to go look. Typically we will tell parents, go look, you can always, it’s much easier to say I looked and didn’t like it for these reasons. Then I refuse to even consider them. And again, I’m not saying there aren’t scenarios where it’s so completely inappropriate place with it. You could say legitimately say, look, I don’t see how the possibly meets my child’s needs. But again, it’s the you know, sometimes it is sort of, you know, not putting up obstacles that you don’t have to. one of the things just, you know, I realized, I tend to kind of go off on that and stop what I was going to say just to bring it back to the like say the 10 day notice, is it fatal to a claim of a parent doesn’t do it
No. Okay. It is, it’s discretionary to the hearing officer. So if a parent failed to do the notice Mmm. It doesn’t necessarily mean you don’t have a claim, but it could be relevant and honestly, you know, I think it goes to the, you know, is the, was the district generally aware the parent was dissatisfied Maybe they mentioned it in passing has this, you know, have things come up before. but as a practical matter, I would say that the importance of that 10 day letter probably varies with the hearing officer’s decision in terms of whether they are planning to award the tuition reimbursement or not. Meaning it’s a lot more important that apparent if in the case where a parent did not provide the 10 day notice, it tends to be a lot more important to the hearing officer where they were not probably intending to give the tuition reimbursement anyway. But if they were, then it becomes less important it seems.
Me: Let’s say I do everything by the book and I found a school that will admit my child. We go through like what happens then after I give my 10 day notice and I’ve enrolled my child. You just kind of wait to hear about a hearing.
Special Education Attorney Steve Jacobson: Well, what’s going to happen is, and maybe just to clarify, you know, the approved private school, why that is a little different is as you’ve indicated, it’s totally a Pennsylvania construct that these are schools that have agreed with the state to implement IEP from school districts. Okay. In return, the state is paying a percentage of the cost, and my recollection it’s about 50. It’s 50, 60%. Okay. So they’re a little different than an approved private school in terms of a parent’s ability to, you may be a parent, may be able to go visit and observe perspectively, but chances are the actual application, most approved private schools are going to say it needs to go through your school district. Now through a true private school, like you mentioned Quaker school type, you know, just a true private school that, you know, traditional private school, that would not be the case.
So let’s say you’ve done everything you’re supposed to do and you’re now your child is now in the private school. You’ve, indicated to them that you want a reimbursement, excuse me, to the district. Well, one of the things is, you know, where does a parent sit financially to begin with Meaning what’s the risk to a parent And one of the things, you know, sometimes parents come to us fortunately where they haven’t necessarily taken their child out, but sometimes they’ll come to us saying, well, here’s what I’m planning to do next week. Okay. And we say, well, is that something you can afford You know, is that like, would you be doing this regardless and you’re just hoping to get money back from the district or is this something you need the district to pay for because you can’t possibly swing this, which is the case for most parents.
Right. And you know, if it’s the, if it’s, you know, if it’s the, the strategies just varies. So if it’s the former and they can afford it, well then you know, what you’re going to do is you’re going to file a due process complaint through an attorney or you know, parents. There’s no requirement that you have an attorney. typically I would say you do want one though because the district is always going to have one. So if it gets that far where you’re, you know, file a due process hearings, most of the time though, a parent comes to us, they’re saying, well, here’s what I’d really want because things are going South or what have you. And they are really, they really need the school district to pay for it. Now, I would say most many of these cases, at the very least, what, how a parent can get there to the private school they want may not necessarily be because the district feels that now they couldn’t provide, a program for their child.
It may be that in the past that the district kind of dropped the ball. Okay. Where a parent could say, look, you know, you’ve kind of failed my child, or my opinion, you failed my child for the last couple of years. Well, as you know, the remedy for that is what we call compensatory education. Well, many times you could parlay that compensatory education, kind of trade it for future programming, and that might get you the private school you’re looking for. It’s just another Avenue to get there. but do, then again, apologize for the tangent, but unfortunately, most of these issues never so clean that, you know, you can say blanketly, okay, here’s what you’re always going to do by going back to your scenario. Let’s say this is a parent because you know, they’ve already given their notice. They’ve already placed their child. So clearly they could afford it or at least afford it to afford it to start. then what apparent would do is you would file a due process hearing complaint, either through an attorney or you go to the department of education website and you can just kind of do it online there.