Legal Memorandum: Reimbursement for Unilateral Placement

Issue: When can the equitable remedy of reimbursement be awarded to parents for placement of a pupil in a nonpublic school in a case involving Free Access to Public Education (FAPE)?

It is well established that a district board of education need not pay for the cost of a unilateral placement “if the district made available a free, appropriate public education and the parents elected to enroll the student in a nonpublic school, and early childhood program, or an approved private school for students with disabilities.”  N.J.A.C. 6A:14-2.10(a); 20 U.S.C. § 1412(a)(10)(C)(iv).  However, even if the district denies the student Free Access to Public Education (FAPE), reimbursement is appropriate only if the unilateral placement chosen by the parents is appropriate to meet the student’s individualized educational needs.  N.J.A.C. 6A:14-2.10(b); Florence County Sch. Dist. v. Carter, 510 U.S. 7, 15 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).  Before these issues are reached, however, New Jersey and federal law require a certain level of cooperation and collaboration among the parents and the District to develop an appropriate program and placement for the student and afford the District a reasonable opportunity to address any parental concerns with the District’s proposed placement.  See B.M. & D.M. o/b/o M.M. v. Livingston Twp. Bd. of Educ., EDS 5503-09 (June 23, 2009) (“The notice requirement set forth in N.J.A.C. 6A:14-2.10 is meant to afford school districts the opportunity to remedy the problem and offer alternative solutions such that removal and placement into another educational facility is unnecessary.  Without such notice, the school district may be unaware there is an issue at all and is never given the opportunity to share what […]