Wasserman on Reimbursement and the IDEA

New on Westlaw (sorry, no free link yet): Lewis M. Wasserman, Reimbursement to Parents of Tuition and Other Costs Under the Individuals with Disabilities Education Improvement Act of 2004, 21 St. John's J. Legal Comment. 171 (2006). The introduction:

A substantial number of judicial decisions involve parents of disabled children who are dissatisfied with the programs and/or services offered to their child by public agencies. These parents opt to enroll their child in programs and/or services they deem appropriate to meet their child's special needs and then seek reimbursement for the associated expenses under the Individuals with Disabilities Education Improvement Act of 2004 (hereinafter "IDEA/2004"). These programs and services typically include private school programs, tutoring, supplementary services and independent medical or other professional evaluations of their child for the purpose of ascertaining their special needs. At times, although satisfied with the Individualized Education Program (hereinafter "IEP") their school district created for their child, parents purchase special education or related services and then seek reimbursement for such expenses, contending that the school district did not implement the IEP as required. However, parents are not always successful in obtaining reimbursement.

This article examines the elements for reimbursement under IDEA/2004, namely denial of a free appropriate public education for the child and the appropriateness of the programs/services purchased by the parents, through judicial decisions rendered under IDEA/2004's predecessor statutes to reimbursement claims under IDEA/2004. The article will also examine complete and partial defenses to reimbursement claims under IDEA/2004 based on, among other things, parental conduct, program/services cost, and statutes of limitation. Finally, the article will synthesize the current statutory scheme with case law to render practical advice regarding the prosecution of complaints seeking reimbursement under IDEA/2004 and make suggestions for further amendment to IDEA which may be helpful in attaining the Congressional goal that all children with disabilities receive a free appropriate education which meets their special needs.

What a timely article (given the Supreme Court's recent cert. grant in Tom F.)!