Section 511IAC7-34-10. Reimbursement for parent's unilateral enrollment of a student in a nonpublic school or facility when the public agency's provision of a free appropriate public education is in dispute

   (a) This section does not require the public agency to pay the cost of education, including special education and related services, of a student with a disability at a nonpublic school or facility if the:

(1) public agency made a free appropriate public education available to the student; and

(2) parent elected to place the student in a nonpublic school or facility.

However, the public agency must include the student in the population whose needs are addressed in sections 1 through 9 of this rule.

  (b) Disagreements between a parent and a public agency regarding the availability of a program appropriate for the student, and the question of financial reimbursement, are subject to the due process procedures in 511 IAC 7-45-3 through 511 IAC 7-45-11.

  (c) If the parents of a student with a disability, who previously received special education and related services under the authority of the public agency, enroll the student in a nonpublic preschool, elementary school, or secondary school without the consent of or referral by the public agency, the parent may seek reimbursement for the costs of the nonpublic school or facility from the public agency.

  (d) If the parent and the public agency cannot reach agreement on the issue of reimbursement, either may request a due process hearing under 511 IAC 7-45-3 to resolve the issue.

  (e) The independent hearing officer or the court may require the public agency to reimburse the parent for the cost of the nonpublic school enrollment if the hearing officer or court finds both of the following:

(1) The public agency did not make a free appropriate public education available to the student in a timely manner prior to enrollment in the nonpublic school or facility.

(2) The nonpublic placement is appropriate.

  (f) The hearing officer or the court may find that the nonpublic placement made by the parent is appropriate even if the placement does not meet the state standards that apply to education provided by public agencies.

  (g) The hearing officer or the court may reduce or deny reimbursement to the parents in the following instances:

(1) If:

(A) at the most recent CCC meeting that the parents attended prior to removal of the student from the public agency, the parents did not inform the CCC that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to the student, including stating their concerns and their intent to enroll the student in a nonpublic school at public expense; or

(B) at least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the student from the public agency, the parents did not give written notice to the public agency of the information described in clause (A).

(2) If, prior to the parent's removal of the student from the public agency, the public agency informed the parent, through the notice requirements of 511 IAC 7-40-4(e), of its intent to evaluate the student, including a statement of the purpose of the evaluation that was appropriate and reasonable, but the parent did not make the student available for evaluation.

  (h) The hearing officer or the court must not reduce or deny the reimbursement if the parent failed to provide the written notice described in subsection (g)(1), if the hearing officer or the court finds any of the following:

(1) Compliance with subsection (g)(1) would likely result in physical harm to the student.

(2) The public agency prevented the parent from providing the notice described in subsection (g)(1).

(3) The parent had not received notice of procedural safeguards, under 511 IAC 7-37-1, containing the notice requirement of subsection (g)(1).

  (i) The hearing officer or the court, in its discretion, may decide not to reduce or deny reimbursement if the parent failed to provide the written notice described in subsection (g)(1) if:

(1) the parents are not literate or cannot write in English; or

(2) compliance with subsection (g)(1) would likely result in serious emotional harm to the student.

  (j) The cost of reimbursement may be reduced or denied upon a judicial finding of unreasonableness with respect to the actions taken by the parents. (Indiana State Board of Education; 511 IAC 7-34-10; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; readopted filed Nov 6, 2014, 3:23 p.m.: 20141203-IR-511140382RFA)