The confusion about FAPE, residence, and private schools…

Suppose the parent of one of the kids in your special education program informs you that for the  2019-20 school year, the child will be attending a private school that is located in your neighboring district.  You wish the family well and go on to deal with other issues. 

You don’t hear from the family again, until April 2020, when the parent sends you a letter that reads “I am still interested in public school placement for my child and request the District provide an offer of FAPE for the 2020-21 school year.”

What to do?  Let’s hope you do not respond like Bellflower USD in California did.  BUSD informed the parent that it would not hold an IEP Team meeting or offer FAPE until the child enrolled in BUSD. The letter from the BUSD noted that the child was attending a private school that was outside of BUSD’s boundaries.  So BUSD was no longer responsible.

That’s wrong.  The court held that the district was required to hold an IEP Team meeting and its failure to do so denied FAPE and meaningful parent participation.  The parents were entitled to tuition reimbursement. 

The school district simply misunderstood the law.  If the parent sought “proportionate services” while attending the private school, the neighboring district where the private school was located would be responsible. But the duty to offer and/or provide FAPE belongs to the district of residence.  The kid lived in Bellflower. Bellflower was responsible for offering FAPE, and the parent did not have to enroll the child to hear what that offer would be.  Bellflower should have held the IEP Team meeting, and offered an IEP. Then the parent could take it or leave it. The student is not entitled to receive FAPE until the student enrolls and attends.  But the parent is entitled to an offer of FAPE if the student is a resident of the district.

It’s  Bellflower USD v. Lua, decided by the district court for the Central District of Florida on July 8, 2019. We found it at 74 IDELR 231.


Coming up—the Best Month of the Year!  See you Monday.