Private Placements for Children with Disabilities: Who Pays?
On October 10th, the U.S. Supreme Court divided evenly in Board of Education of New York City v. Tom F., which affirmed the Second Circuit’s decision without setting a national precedent. Justice Kennedy excused himself from the Supreme Court decision, which made the four-four vote possible. As customary with tie votes, there was no written opinion, so we can only speculate as to the justices’ reasoning.
The Second Circuit had vacated the district court’s ruling in light of its opinion in a companion case, Frank G. v. Board of Education of Hyde Park, which in effect became the appellate holding in Tom F. Essentially, the Second Circuit ruled that parents can get reimbursed for private school tuition for their child with disabilities even though the child has never received any special education or related services from the public school district. The appeals court concluded that the private placement need not satisfy state education standards as long as the program allows the child to receive educational benefits and the proposed public school program is not considered appropriate. Of course, parents who unilaterally place their child in a private school do so at their own risk. In prior decisions, the Supreme Court ruled that parents can get reimbursement for unilateral private placements only if ultimately determined through the appeals process that the available public school program for the specific disabilities is not appropriate. It was assumed until recently that parents would have to give the public school program a fair trial period for the “appropriateness” determination to be made.
The Tom F. case is significant because some fear that it will be very costly for school districts and will provide an incentive for parents to select private programs over public school offerings. Also, there is some sentiment that the ruling favors wealthy parents. Those without financial means may not be willing to take the risk of unilaterally placing their child in a private school, since ultimately they may be responsible for the tuition. The New York City school system argued that the Individuals with Disabilities Education Act (IDEA) was not designed to allow parents to enroll their children with disabilities in private schools without giving the public school program a chance to meet their needs. School officials are concerned that some parents who never intended to enroll their children in public schools will seek to have their child qualify for IDEA services solely to be eligible for private school tuition.
Only New York, Connecticut, and Vermont are covered by the Second Circuit ruling, but other jurisdictions may decide to follow this decision. The Supreme Court declined to review the Frank G. case, and until it renders a decision on the merits of this issue, the legal requirements may vary across jurisdictions. #
Dr. Martha McCarthy is the Chancellor’s Professor and Chair, Educational Leadership and Policy Studies, Indiana University.