POLICY LETTER: January 5, 2011 New York State Education Department Associate Commissioner Rebecca Cort

January 5, 2011Rebecca H. CortVESID - New York State Education Department99 Washington AvenueOne Commerce Plaza Room 1606Albany, New York 12234Dear Ms. Cort:This is in response to your August 23, 2010 letter seeking clarification from the Office of Special Education Programs (OSEP) regarding the authority of a local educational agency (LEA) to provide tuition reimbursement to parents of students with disabilities who unilaterally place their child in a nonpublic school when a free appropriate public education (FAPE) is at issue. You seek clarification as to whether an LEA can reach an agreement for tuition reimbursement absent the ruling of a court or hearing officer.Specifically, you ask the following three questions:Does 34 CFR 300.148 limit an LEA's authority to provide tuition reimbursement to meet its FAPE obligation to instances ordered by a court or hearing officer and upon the two-prong finding that the district failed to provide FAPE to the student and the private school placement is appropriate?If Federal regulations would otherwise authorize tuition reimbursement agreements through mediation or settlement agreements, how does the State ensure that its students are receiving FAPE, particularly when most tuition reimbursement cases are for unilateral placements in non-special-education-approved schools and there has been no decision that the school is appropriate for the student?If Federal regulations would otherwise authorize tuition reimbursement agreements through mediation or settlement agreements when there has been nBased on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented.If you have questions, please do not hesitate to contact Dr. Deborah Morrow, at 202-245-7456 or by email at Deborah.Morrow@ed.gov. Sincerely,/s/Melody Musgrove, Ed.D.DirectorOffice of Special Education Programs Page PAGE * MERGEFORMAT 2 Rebecca H. Cort