Working for one of the top student side special education law firms in Northern California, I get a lot of “used” cases. Those where parents, advocates, or other attorneys have tried and failed. Our history of success can make people believe we can work miracles, and many times it may seem like we do. Often a significant portion of our time and effort (with the associated costs) goes to cleaning up the problems created before the case got to us, but few missteps are terminal. Parents and even professionals can get caught up in the fight and unknowingly make mistakes that hurt a child’s case. When I reviewed the records in my own children’s matters I was embarrassed to recognize the many mistakes I had made myself, before I began practicing full time in this area. My mistakes, like most others could be cured, worked around, and sometimes even flipped to the student’s advantage. Remember, good cases are built on the lies, denials, and legal violations by school districts. So while it hurts to realize you let them pull one over on you, ultimately that action probably strengthened your case. Unless you did one of two things. Yes, it would have been best not to throw a chair at the school board, cuss out the superintendent, or even send a glowing letter of praise about how the great progress your child is making. But, we can deal with those and many other bumps in the road. As long as you haven’t done one of two things.
Whenever I talk to a parent, or analyze a new case where a child is currently in a private school, non-public school (NPS), or even homeschooled the first thing I need to know is whether the parents gave proper notice and whether they withdrew from their district. When I hear or see that they have my heart sinks. No school will ever warn you of the impact of those two critical actions. In fact, often they will trick or bully parents into making these mistakes knowing it effectively destroys the parents hope for obtaining meaningful support from their district. Some states, SELPAs, and Districts have even designed their forms to lead parents into this dangerous abyss. Don’t fall for it. Never, ever, ever withdraw your child from a public school and never, ever, ever privately place your child without giving timely, legally appropriate notice. You do and you’re screwed, period.
So what do you do when you are at your wit’s end and can’t allow your child to remain in a public placement that is damaging them? And, in case you didn’t know it failing to make progress is “damage.” Every child has a limited window of neuroplasticity, the point where the brain “firms up” and loses its amazing ability to change and learn. For a mistake with such potentially horrible consequences, the answer is surprisingly simple.
First, never withdraw your child from your school district. Privately placing does not require withdrawal, if the school tells you otherwise they are lying to you. Once a child is withdrawn the district has no responsibility for them. However, even if a child is placed outside their schools they retain the obligation to provide supplemental services and monitor to assure the child is receiving an appropriate education. If you go to an attorney seeking anything from your district after withdrawal you will be advised you need to re-enroll and go back through the assessment, eligibility determination, and IEP process all over again. This will delay any help for a minimum of 60 days, and foreclose recovery for any expenses incurred since withdrawal.
To retain, but by no means guarantee, your right to seek reimbursement from your district you must provide timely and appropriate notice. There are two ways to do this: One, advise the “team” at an IEP meeting that you are giving notice of “Unilateral Placement at Public Expense;” Two, send formal written notice at least ten days before committing to the placement to allow the district to “sweeten” their offer of FAPE. It is best, but not mandatory, to create a record of the inadequacies in the current program or placement that make it inappropriate at the time you give notice. Being a belts and suspenders type of guy I love to see that both have been done. Either notice must declare your intent to unilaterally place (no, you don’t have to specify where) and your intent to seek reimbursement for the costs associated with that placement. To be timely, you should not have committed to a private placement before the IEP, or the end of the ten days. The notice does not require you to take action, so give it’s ok to give notice while you are still struggling to find an appropriate placement. Just, don’t begin attending or even complete enrollment before you give notice.
There, now I feel better…..