Help! Son attends Private School for Children with Learning Disorders…possible state reimbursement?

Question: Our son is diagnosed with Autism Spectrum Disorder and attends a private school designed to help children with learning disorders. He has and has always had an IEP when he was in the public schools through the 4th grade, but as we felt that the public school system was not able to provide the necessary accommodations we enrolled him in a private school that is specifically designed to teach children with learning disabilities. That school is very expensive. While we pay state taxes for the public school system, we receive no benefit and no compensatory support for the cost of the private school that our son requires. Is there any means to petition for state reimbursement funds for the educational dollars they have from our taxes but have not spent on my son? Thank you!

In part your question was answered in an earlier Ask the Attorney response. Therefore, I have taken the liberty of putting your question regarding reimbursement of your expenses for private schooling together with my response to the earlier questions regarding support for disabled “private school” students available from the local public school district where the private school is located.

Reimbursement for Private School Placement

The simple answer to your reimbursement question from the State is NO. The reason goes back to 1970. At that time the Michigan Legislature passed a law similar to ones in other states that allow state tax dollars to be paid parents of students in private schools to offset their tuition costs. The reasoning is exactly the one you reference. Parents of students in private schools pay the same taxes as parents of students in public schools, but derive no benefit from their payments. A number of voters and groups did not agree with this law and the repeal of this law was brought before the voters in a proposed amendment to the Michigan Constitution. That amendment passed and disallowed the Legislatures efforts by stating:

“No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students….”
Michigan Const. Art. VIII, § 2.

In 2000, a voter driven effort to remove this section of the Michigan Constitution by ballot initiative failed to gain voter approval by a substantial majority. As a result of this amended, the only avenue available for reimbursement of private school tuition the limited availability that is discussed below.

In Michigan, unlike a number of other states, IEP Teams will very rarely assign an IDEA eligible disabled student to a private placement or in response to a parent request to do so. If they do, then the local school is responsible for all expenses, including tuition, transportation and if a residential facility, likely room and board.

If the parent wishes to contest the public school placement proposed by the IEP Team as not being “appropriate” they first have to give formal written notice at least 10 business days before they commit to a private placement. That notice gives the school district time to reconvene the IEP Team and review if any changes to the IEP are warranted. Essentially an opportunity to create a more defensible IEP assuming the dispute may proceed to be heard by an IDEA hearing officer.

If the parent then continues with the private school placement, they have the right to challenge the IEP Team decision before an IDEA Administrative Law Judge (ALJ) in a trial type (sworn witness testimony and introduction of relevant evidence) administrative hearing setting. In that setting, the school will likely be represented by experienced attorneys, paid for by the taxpayers and/or insurance coverage.
In the hearing the parent (either directly or via a retained attorney) will have the burden to prove to the ALJ by the preponderance of the evidence that: (1) The proposed IEP fails to provide the student with an appropriate education (i.e. a FAPE) and (2) The private placement selected appropriately addresses the student’s needs. If the parent prevails in meeting both the ALJ will determine an amount of appropriate reimbursement. Both parties have the right of appeal the ALJ’s decision to a court of competent jurisdiction. If the parent prevails at the hearing (and on any appeal) and if they retained an attorney to assist them, then they have the right to proceed to demand reimbursement of their attorney’s fees and costs from the public school district. If they fail to prevail, under certain circumstances they (and their attorney) could be liable for the school district’s legal fees and costs.

Services for Disabled Student in Private Schools

There are two potential sources of services available from the public school where the private school is located for IDEA eligible students attending a private school located within their boundaries:

Under the IDEA – One source of private school services is under the IDEA (see 20 U.S.C. §1412(a)(10(a) et seq., where it assigns responsibility for “equitable participation” under its “child find” and service delivery requirements to the local educational agency where the private school is located. The participation of the local public school is determined by the proportion of IDEA eligible private school students with disabilities who are enrolled by their parents in private (including religious, elementary schools and secondary schools) located within the school district served by the LEA, as compared to the number enrolled in the local public schools.
In terms of services provided, IDEA expects the local public school to allow the participation of these private school students in the programs assisted or carried by the local public school under Part B of the Act. Thereby providing these private school students with special education and related services, including direct services, as determined in accordance with 34 CFR §300.137. What that actually means in practice is open to differing interpretations.

Under the Michigan Auxiliary Services Act – The seconds source is the limited services available to disabled students who attend private school under the Michigan Auxiliary Services Act (MCL §380.1296). Under this Michigan law the local public school where the private school is located is required to provide eligible disabled students, free of cost, with certain “auxiliary” services. That includes the services provided by a speech-language pathologist/teacher, a social worker, school psychologist, etc. Additionally, teacher consultant services should be available to assist the non-public school teacher in understanding the student’s disabilities and how the private school teacher can appropriately address the disabled student’s educational needs.

Addressing Disputes

After discussing the issue of support for your disabled child attending the private school with your private and public school administration, if the issues remain unresolved a complaint can be addressed to the Michigan Department of Education – Office of Special Education.