FAPE: IF SCHOOL CAN’T PROVIDE APPROPRIATE PROGRAM, DO THEY HAVE TO PAY FOR PRIVATE PLACEMENT?

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Laura:  I have a child that has been diagnosed with Aspergers and ADHD. She has an IEP and a support staff. However, the teachers have been complaining about her work refusal and impulsive behaviors/tantrums. She is very distracted. Although she is intellectually gifted and doing math and reading way beyond her grade level (reading at high school level), they are talking about having her repeat 4th grade. Many letters home allude that she is making ‘bad choices’ and that I am to work with her to get her caught up on her behind assignments. I am unsure if the IEP is being adhered to 100%. We are looking into a private specialized school for kids with her ‘diagnosis’ (at over $20K per year) because it doesn’t look like she will make it in her current educational setting. We really can’t afford that tuition. I have heard it said that if the school can’t educate the child, then they would be responsible to send her somewhere that can do it, and they would be responsible for the funding. Can you tell me if that is true, and how I would go about seeking an attorney for that??

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Laura –

Yes, this is basically true – if your local district cannot provide a “free appropriate public education (FAPE)” for your child, they have to pay for a placement that can. This is one of the most common – perhaps the most common – reasons for due process hearings.

Before you begin looking outside the district, though, I encourage you to first look at what you can do to try to improve the current program. A due process hearing is costly and contentious, and school districts prevail the majority of the time. There are other options you can take first – independent evaluation, local resolution, mediation, etc. – that are far less costly and contentious. In addition, a hearing officer is more likely to rule in your favor if you tried to make it work before resorting to a hearing.

I suggest that you begin with contacting your local parent center (http://www.parentcenterhub.org/find-your-center/). They can give you information about how the special ed process working where you are, and best options for working that process. They may also be able to give you attorney referrals, if it comes to that.

I also suggest that you obtain a copy of From Emotions to Advocacy (http://www.wrightslaw.com/store/feta2.sm.store.html). Perhaps your daughter would flourish with some key changes to her current program, or perhaps she can only be served well by an outside placement. This book will serve you well in either scenario – even if you’re not sure which your heading towards.

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