IDEA Complaint Decision 09-061

On August 20, 2009, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Burlington Area School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2008-2009 school year, properly provided a free appropriate public education to a three-year-old child with a disability.

The student was enrolled full-time by the student’s parents in a private daycare that provided preschool programming during the 2008-2009 school year. Following an initial eligibility determination, the district developed an individualized education program (IEP) and has been providing special education services to the student since September 2008.

The student’s IEP, developed on June 5, 2008, with a September 8, 2008, implementation date, specified the student would participate full-time with non-disabled peers in age appropriate settings. The IEP documented the student would receive ten hours per week of special education and related services in a private daycare setting to address the needs resulting from the student’s disability. The IEP program summary includes special education, related services, supplementary aids and services, and program modifications and supports for staff. During the IEP team meeting, there was discussion about whether a more restrictive setting might be needed, but the final decision was placement in the private daycare in which the student was already enrolled by the student’s parents. The placement notice named the private daycare as the location where the IEP would be implemented.

On January 27, 2009, the IEP team reconvened to review and revise the student’s IEP and determine placement. The student’s placement was changed to include both the private daycare location and the elementary school where the district operated an early childhood special education program. The IEP stated the student required special education services for two and one-half hours per week in the private daycare setting and five hours per week in the district’s early childhood special education classroom. The IEP program summary includes special education, related services, supplementary aids and services, and program modifications and supports for staff. The revised IEP and placement was implemented on February 3, 2009.

The IEP team met again on May 5, 2009, to develop an annual IEP and consider placement. The IEP team determined the student’s placement would continue to include the private daycare and the elementary school where the district’s special education preschool classroom was located. The IEP stated the student would receive special education and related services in the private daycare location for 120 minutes per month between May 21 and June 12, 2009.

School districts must offer all children with disabilities, beginning at age three, a free appropriate public education (FAPE) that meets their individual needs. A district’s responsibility to make appropriate educational programs available to children with disabilities, at no cost to the parents, includes preschool children with disabilities. When a school district places a student in a private preschool program for the purpose of receiving FAPE, the child’s entire educational program during the time the child is placed by the public agency must be provided at no cost to the parent. If the IEP team determines full-day placement in a private preschool, which integrates disabled and nondisabled children, is the appropriate placement in which to implement a child’s IEP, the public agency is responsible for the tuition costs associated with providing that placement. Some private preschools offer both full-time and part-time placement options. In this situation, if the IEP team determines part-time placement in a private preschool is the appropriate placement in which to implement a child’s IEP and the parent wants the child to remain in the private preschool longer than what is required in the IEP, the parent is responsible for any costs associated with the portion of the program not necessary to implement the child’s IEP. [See Letter to Neveldine, 22 IDELR 630; DPI Information Update Bulletin 08.05].

When a school district places a student in a private daycare center, the district and the private daycare center must determine the cost for the portion of time during which the IEP services are delivered to the child. The cost will depend upon the enrollment policy and fee schedule of the private daycare. The district must reimburse the parent accordingly or otherwise ensure the IEP is implemented at no cost to the parent. In the current case, the district reimbursed the parent for a portion of the daycare tuition. The parent disagrees with the district’s calculation and believes the district was required to pay for full-time daycare enrollment.

In the current case, the IEP team determined the student required a part-time special education placement in the private day care setting. This particular daycare offered full-time and half-day enrollment options. A half-day is considered five hours or less. The daycare did not offer hourly enrollment options. Half-day tuition at the private day care is $30 per day for three-year-olds and $28 per day for four-year-olds. Between September 8, 2008, and May 31, 2009, the district provided special education and related services to the student for a portion of 50 days while the student was three-years-old and for seven days after the student turned four. At no time were special education services provided for more than five consecutive hours on any day. Based on the daycare program’s set tuition rates, the tuition cost for 57 half-days is $1,696. The district attempted to properly calculate the daycare tuition. However, the district only reimbursed the parent $1,172.50. Within 30 days of receipt of this decision, the district is directed to reimburse the parents an additional $523.50 for the period between September 8, 2008, and May 31, 2009.

Although the IEP in effect in June 2009 required 120 minutes per month of special education services at the private daycare, the district did not provide any special education or related services to the student at the private daycare placement between June 1 and June 12, 2009. The district is directed to hold an IEP team meeting to determine if additional services are needed at the daycare setting due to the failure to provide services to the student during this time period. If additional services are needed, the district will ensure such services are provided at no cost to the parent. The district must submit documentation of the IEP team’s decision to the department by November 16, 2009.

Within 30 days of receipt of this decision, the district will also submit to the department a proposed corrective action plan to ensure district staff are aware of the obligation to provide needed special education and related services to preschool age children with disabilities. The plan must also include corrective action to ensure services are provided at no cost to the parent, and the district properly calculates tuition costs whenever the LEA makes a special education placement outside the district’s program.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 10/14/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720