What You Need to Know About Out-of-District Placements

The COVID-19 health crisis has been an enormously challenging time for students, parents, teachers, and administrators. The extended period of remote learning impacted all students, including those with special needs who receive services and accommodations pursuant to the Individuals with Disabilities Education Act (IDEA). When schools reopened, issues relating to learning loss, mental health, socialization, and IEP violations were prevalent. The manner in which these issues were, and continue to be, addressed varies from district to district. In some cases, a child’s needs simply cannot be met, and an out-of-district placement is needed, but securing an out-of-district placement at the district’s expense can prove difficult. This article explores when an out-of-district placement is needed and how to best advocate for the appropriate placement.

As a matter of both federal and state law, every child with a disability between the ages of 3 and 21 is entitled to free and appropriate public education (FAPE) in the least restrictive environment. See 20 U.S.C. §1400 (2004) et seq.; 34 C.F.R. §300.1 (2006) et seq. The IDEA and New Jersey statutes provide that the student’s school district must deliver special education and related services in accordance with the student’s Individual Education Plan (IEP) and guarantee the right of parents to participate in planning and monitoring the education program and services provided to the child. Id.; N.J.A.C.6A:14. There are approximately 230,000 students in New Jersey who are classified as eligible for special education. That translates to 230,000 individual education plans that need to be implemented to ensure FAPE.

For many students with disabilities and their families, remote or hybrid learning presented insurmountable educational and developmental hurdles. It has been widely reported that the virtual learning environment led to significant learning loss and regression for students with disabilities. Moreover, virtual services, such as occupational, speech, and physical therapy, largely proved ineffectual. Remote learning also led to sustained periods of physical isolation and lack of socialization, all of which affected children’s mental health.

Even before COVID, some children were not receiving FAPE because their respective districts could not meet their needs. A child may have an appropriate IEP in place, but if the IEP is not properly implemented, it is difficult for the child to make meaningful progress, which can lead to such other issues as anxiety and depression. Other children have significant behavioral issues that are not adequately addressed because their districts do not have the appropriate facilities, staff, or programs to meet their needs. Other children have significant mental health issues that require more intensive interventions. Remote learning exacerbated these issues when special education services were being provided only “to the greatest extent possible.”

In many cases, the return to school proved challenging due to significant learning loss and/or extreme mental health issues brought on by COVID. Where a child is regressing or their learning progress is at a standstill, the question becomes whether the child’s public school can provide the child what is needed through appropriate programs, services, and accommodations. If the school cannot provide FAPE, placement in an out-of-district school may be appropriate.

An out-of-district placement places a student at a specialized school or program outside of their local school district, at the expense of either the district, the child’s parents, or a combination of both. Out-of-district placements include specialized education schools, charter schools, and residential schools. Some schools are specialized for a particular disability (e.g., St. Joseph’s School for the Blind), while others provide learning for students with various disabilities (e.g., ADHD, dyslexia, auditory processing disorder). Students with more pervasive disabilities or significant mental health issues may require residential placements, some of which are located outside the state. There are additional private schools in New Jersey that are not on the state-approved list and, while parents can seek placement at one of these schools, placement at the district’s expense may prove more difficult.

To the extent the district agrees that an out-of-district placement is necessary, the district will first consider placement at a school on New Jersey’s approved list. Depending on the child’s needs, an approved private school in another state may be considered. See N.J.S.A. 18A:46-14(g). If no state-approved private school can provide FAPE, an accredited nonpublic school can be considered under a Naples placement, which requires the consent of the Commissioner of Education or an order resulting from a due process proceeding. See N.J.S.A. 18A:46-14(g); N.J.A.C. 6A:14-6.5.

Where the district refuses the parents’ request for an out-of-district placement, the parents can unilaterally place the child in an out-of-district school. The parents are responsible for tuition, absent an agreement with the district or a ruling by an administrative law judge that the district failed to provide FAPE and the chosen school is appropriate to meet the child’s educational needs. See N.J.A.C. 6A:14-2.10.

Reimbursement may be reduced or denied if the following procedural requirements are not met: 

• Be reasonable. Federal and state laws provide that reimbursement may be reduced or denied if parents are not reasonable. See 20 U.S.C. §1412(a)(10)(C)(iii)(III); N.J.A.C. 6A:14-2.10(c)(4). While a determination of unreasonableness is fact-specific, compliance with the below requirements may preclude such a finding. Before requesting an out-of-district placement, parents should document their concerns and cooperate with the district in an effort to meet the child’s needs, such as trying a different program offered by the district. Documenting the child’s lack of progress and efforts to obtain further support is critical to requesting an out-of-district placement and/or tuition reimbursement.
• Reject the IEP. If parents intend to seek tuition reimbursement, they must reject the IEP at the most recent IEP meeting on the grounds that the proposed IEP does not provide FAPE. See N.J.A.C. 6A:14-2.10(c)(1).
• 10 Days Written Notice. Parents must provide the district with written notice at least 10 days (excluding weekends) prior to placing the student out-of-district, advising the district of the intent to enroll the student out-of-district and detailing parental concerns. See N.J.A.C. 6A:14-2.10(c)(2). Enrollment should not occur until the 10-day time period has expired.
• District Evaluation. If the district provides written notice of its intent to evaluate the child before removal from the district, parents should make the student available for evaluation in order to protect the claim for reimbursement. See N.J.A.C. 6A:14-2.10(c)(3).

Administrative law judges have reduced or denied tuition reimbursement on the grounds of parental unreasonableness where the parents failed either to reject the IEP during the most recent IEP meeting, to provide 10-day written notice, and/or to make the child available for evaluation. See N.J.A.C. 6A:14-2.10(c)(4); I.G. et al v. Linden City Board of Education, No. 2:2020cv12761 – Document 22 (D.N.J. 2021) (upholding finding that the parents failed to act reasonably because they did not collaborate with the district to resolve the issues); M.I. v. North Hunterdon-Voorhees Regional High School District Board of Education, No. 3:2020cv00870 – Document 17 (D.N.J. 2021) (rejecting finding that a parent acted unreasonably where parent and student attended meetings with district personnel and visited the public school the student would attend).

New Jersey laws are more stringent than the IDEA regarding unilateral placements. See 20 U.S.C. §1412(a)(10)(C) and N.J.A.C. 6A:14-2.10. The IDEA requires parents to either notify the IEP team at the most recent meeting and prior to placement that they are rejecting the IEP, or provide 10 business days’ written notice. See 20 U.S.C. §1412(a)(10)(C)(iii)(I) (aa) and (bb). New Jersey regulations require both rejection at the IEP meeting and 10 days’ written notice. N.J.A.C. 6A:14-2.10(c)(1) and (2). Although there is some debate in New Jersey about what notification is required for a unilateral placement, because New Jersey’s requirements appear to require more than federal law, it is recommended that parents and practitioners both comply with the 10-day notice requirement and formally reject the IEP to avoid a denial or reduction in tuition costs.

The IDEA and New Jersey regulations also have different exceptions. Both state that reimbursement shall not be reduced or denied for failure to provide notice if the school district prevented the parent from providing notice and the parents were not advised of the statutory notice requirements. The IDEA also states that reimbursement shall not be reduced or denied for failure to provide notice if compliance would likely result in physical harm to the child. The IDEA further states that reimbursement may not be reduced or denied in the discretion of a court for failure to provide notice if the parent is illiterate or compliance with the notice requirements would likely cause serious emotional harm to the child. New Jersey regulations provide that, at the discretion of the court, reimbursement may not be reduced if the parent is illiterate and compliance with the notice requirements would likely result in serious emotional or physical harm to the student. See 20 U.S.C. §1412(a)(10)(C)(iv); N.J.A.C. 6A:14-2.10(d).

In an ideal world, parents and school districts would agree on the proper placements for children, but this is often not the case. In the face of a disagreement, parents may decide unilaterally to place the child at a private school and file due process seeking reimbursement. Because these cases are highly fact sensitive, it is critical that the appropriate steps be followed. Know your rights and act reasonably.

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Reprinted with permission from the January 17, 2022 issue of the New Jersey Law Journal. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.