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Special Education Compliance |
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UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES CONTACT
PERSONS: MEMORANDUM To: Chief State School Officers From:
Kenneth R. Warlick, Director In response to requests from the field for a document that restates and consolidates guidance that the Department has provided regarding the nature and extent of school districts' obligations to parentally-placed private school children with disabilities under Part B of the Individuals with Disabilities Education Act (Part B), the attached question and answer document is being issued. Some of the questions contained in this document were raised by individuals who attended the six regional meetings conducted following publication of the final regulations implementing the Individuals with Disabilities Education Act Amendments of 1997, Pub. L. 105-17 (IDEA '97); others were raised subsequent to the issuance of the final regulations. This question and answer document restates the requirements reflected in these final regulations published on March 12, 1999, at 64 Fed. Reg. 12406, and the explanations provided in Attachment 1, Analysis of Comments and Changes, in response to public comments on the proposed regulations applicable to parentally-placed private school children with disabilities. In
determining school district responsibility for children with disabilities in
private schools, generally such children are in one of two groups, and public
agency responsibility will vary based on the group into which the children fall.
The first group includes children with disabilities placed at private schools by
public agencies as a means of providing special education and related services.
Specifically, if a public agency places or refers a child with a disability to a
private school or facility for the purpose of providing, a free appropriate
public education (FAPE) to that child, the child must receive a program of
special education and related services at the private school at no cost to the
parents, and the child and his or her parents have all of the rights that they
would have if the child were served by the public agency. 34 CFR §300.401. The
second group of children includes children with disabilities placed at private
schools by their parents, and this second group consists of two subgroups. The
children with disabilities in the first subgroup are placed by their parents at
private schools when FAPE from a public agency program or placement is not at
issue, and this subgroup of children, which must be provided special education
and related services consistent with their numbers and needs, has no individual
entitlement to services under Part B. 34 CFR §§300.403(a) and 300.450-300.462. The
second subgroup includes children with disabilities placed at a private school
by their parents without the consent of or referral by the public agency because
the parents believe that the public agency has failed to offer their child FAPE.
If a hearing officer or court agrees with the parent and finds that there has
been a denial of FAPE, the parents may be able to obtain tuition reimbursement
for part or all of the cost of their unilateral private school placement. 34 CFR
§300.403(c). The specific requirements relating to disputes about FAPE are not
addressed by this guidance. Rather, the guidance set forth in this question and
answer document focuses on the responsibilities of public agencies to provide
for the participation of all children with disabilities placed by their parents
in private schools in the Part B program in accordance with 34 CFR §§300.450-300.462. The Department believes that the right of parents to choose where their children should be educated, whether at public or private school, is extremely important. Nevertheless, the rights of parentally-placed private school children with disabilities under Part B are not the same as those of children with disabilities who are enrolled in public schools and are served at public agency programs or public agency placements at private schools. In the 1997 reauthorization of IDEA, Congress amended Part B to include explicit statutory provisions that reflect the Department's longstanding interpretations of the obligations of State and local educational agencies (SEAs and LEAs) to parentally-placed private school children with disabilities under Part B and the Education Department General Administrative Regulations (EDGAR). The following is a brief summary of the major applicable provisions in IDEA '97 that are relevant to parentally-placed private school children with disabilities: (1)
Provision is made for the participation of children with disabilities enrolled
by their (2) Activities are conducted to locate, identify, and evaluate children placed by their parents in private schools, including religious schools, who may need special education and related services. This requirement is known as child find; (3)
A proportionate amount of the Federal funds available under Part B is expended
for (4)
Special education and related services may be provided to parentally-placed
private Department
regulations at 34 CFR §§300.450-300.462, which implement the above statutory
provision, also contain some of the general provisions governing the
participation of children enrolled in private schools in programs assisted or
carried out with Federal education program funds at 34 CFR §§76.65l-76.662 of
EDGAR that apply to a number of other Department programs. Let me emphasize that there is nothing in IDEA '97 or the final Part B regulations that alters or diminishes school districts' obligations to ensure the equitable participation of parentally-placed private school children with disabilities in programs assisted or carried out under Part B. Nor is there anything in the Statute or the implementing regulations that is intended to confer an individual entitlement on these children. However, the statute and regulations in no way prohibit States or local school districts from providing services to parentally-placed private school children with disabilities in excess of those required under Part B, consistent with State law or local policy. The attached questions and answers have been prepared to assist state and local education officials
and private school representatives, as well as parents of children with
disabilities in understanding the requirements of Part B, as amended by IDEA
'97, and the implementing regulations that relate to the participation of
parentally-placed private school children with disabilities in programs assisted
or carried out under Part B. This question and answer document represents
informal policy guidance; however the statute and regulations upon which it is
based are binding on public agencies receiving funds under Part B. Therefore,
the statute and regulations which constitute the legal authority for this
document--20 U.S.C. §14l2(a)(10)(A) and 34 CFR §§300.450-300.462--should be
used for legal citation purposes. We
hope that the attached question and answer document is helpful. Please ensure
that this document is widely disseminated throughout your State so that this
information can be provided to a large variety of interested individuals and
organizations. If you or members of your staff
have questions, please contact either of the contact persons whose names
and telephone numbers are listed at the top of this memorandum. Attachment cc:
State Directors of Special Education You can refer to Section 10 of the State Plan - Private Schools at: http://dese.mo.gov/divspeced/stateplansection10.html
Questions
and Answers on Obligations of Public Agencies I. Child Find Question 1: What is child find for parentally-placed private school children with disabilities? Answer: The Individuals with Disabilities Education Act Amendments of 1997, Pub. L. 105-17 (IDEA '97) clarify the Department's longstanding policy and explicitly provide that the child find requirements in section 613(a)(3) of IDEA apply to private school children, including religious school children. 20 U.S.C. §1412(a)(10)(A)(ii). Child find refers to ongoing activities undertaken by SEAs and LEAs to locate, identify, and evaluate all children residing in the State who are suspected of having disabilities under Part B of IDEA (Part B), so that a free appropriate public education (FAPE) can be made available to all eligible children. 34 CFR §§300.121, 300.125 and 300.220. (For parentally-placed private school children with disabilities, the offer of FAPE is accomplished by offering to make available to an eligible child a public agency program or a public agency placement at a private school. Parents can choose not to accept public education in favor of their parental private school placement.) Under Part B, each LEA must conduct child find for all children in public and private schools, including religious schools, residing in the jurisdiction of the LEA, regardless of the severity of their disability, who are in need of special education and related services. 34 CFR §300.451. In
carrying out child find for parentally-placed private school children, SEAs and
LEAs undertake activities similar to those undertaken for their publicly
enrolled or publicly placed children, such as widely distributing informational
brochures, providing regular public service announcements, staffing exhibits at
health fairs and other community activities, and creating direct liaisons with
private schools. Once children are identified who are suspected of having
disabilities under Part B, LEAs must have procedures for conducting, at no cost
to parents. Part B evaluations of such children residing in their jurisdiction
within a reasonable period of time and without undue delay. Since
public agencies need to have data to develop an accurate count of the total
number of eligible private school children with disabilities residing in their
jurisdiction in calculating the proportionate share of their Part B subgrant
that must be expended annually for services for these children, child find for
parentally-placed private school children with disabilities is particularly
important. Question 2: Can amounts expended for child find, including individual evaluations, be deducted from the required amount of funds to be expended on services for parentally-placed private school children with disabilities? Answer: No. The statutory provisions regarding child find and participation of parentally-placed private school children with disabilities in programs assisted or carried out under Part B of IDEA are separate and distinct obligations. The child find obligation, including individual evaluations, exists independently from the services provision. (Compare 20 U.S.C. §1412(a)(3) with 20 U.S.C. §1412(a)(10)(A)). Therefore, the costs of child find activities, including individual evaluations, may not be considered in determining whether an LEA has met the annual expenditure requirement for services for parentally-placed private school children with disabilities under Part B. 34 CFR §300.453(c). Question 3: Must child find for private, including religious-school children be comparable to child find for public school children? Answer:
Yes. Activities undertaken to carry out child find for parentally-placed private
school children, including religious-school children, must be comparable to
activities undertaken for child find for children in public schools. 34 CFR §300.451(a).
This would include the timing of these activities, and LEAS may not delay
conducting child find, including individual evaluations, for parentally-placed
private school children with disabilities until after child find for
publicly-enrolled or publicly-placed children has been conducted. In determining
how and when to carry out child find, public agencies must consult with
appropriate representatives of parentally-placed private school children with
disabilities. 34 CFR §300.451. Question 4: How can LEAs meet their child find obligations for parentally-placed private school children residing in their jurisdiction, including religious schools? Answer:
LEAs can choose to meet this obligation by conducting the relevant activities or
through contract, interagency agreement with some other entity, or through some
other arrangement. If such an arrangement were undertaken, the LEA, and
ultimately the SEA, still would retain responsibility for ensuring that all
applicable Part B requirements are met. Whether an LEA could contract with a
private school to conduct certain aspects of its child find, including
individual evaluations, would have to be determined on a case-by-case basis. Question 5: May LEAs restrict their child find activities to children with certain disabilities, and exclude from child find some children, if the LEA determines, through consultation, that it will offer its population of parentally-placed private school children with disabilities only certain specified services? Answer:
No. In conducting child find of all children residing in their jurisdiction,
LEAs must identify and evaluate all children suspected of having any
disabilities specified in Part B, regardless of whether such children are
parentally-placed at private schools, including religious schools. 34 CFR §§300.125
and 300.220. Therefore, LEAs may not exclude children suspected of having
certain disabilities, such as those with mild or moderate disabilities, from
their child find activities. This is so, regardless of whether State laws or
policies specify which children parentally-placed at private schools suspected
of having certain disabilities must be evaluated. Question 6: Once parentally-placed private school children suspected of having disabilities under Part B are identified, are the requirements applicable to evaluations of such children the same as requirements applicable to other children suspected of having disabilities? Answer: Yes. Evaluations of all children suspected of having disabilities under Part B, regardless of whether their parents have chosen to enroll them in private schools, must be conducted within a reasonable period of time in accordance with requirements at 34 CFR §§300.532-300.535
of the Part B regulations, and the parents must give their informed consent to
conduct the evaluation. 34 CFR §300.505(a)(i). Section 300.532 of the Part B
regulations sets out minimum evaluation procedures. Among other requirements,
evaluations conducted under Part B can be accomplished through tests and other
evaluation materials that must be selected and administered so as not to be
discriminatory on a racial or cultural basis, and must be provided in the
child's native language or other mode of communication unless it clearly is not
feasible to do so. 34 CFR §300.532(a)(1)(i)-(ii). No
single procedure can be used as the sole criterion for determining whether a
child is a child with a disability and for determining an appropriate
educational program for the child. 34 CFR §300.532(f). Also, the child must be
assessed in all areas related to the suspected disability, including, if
appropriate, health, vision, hearing, social and emotional status, general
intelligence, academic performance, communicative status, and motor abilities.
34 CFR §300.532(g). A review of existing data is part of both the initial
evaluation, if appropriate, and a reevaluation. This would include evaluations
and information provided by the parents of the child. 34 CFR §300.533(a). Question 7: Following the evaluation, are the requirements the same for parentally-placed private school children as for other children who have been evaluated under Part B? Answer: As with public school children, following the initial evaluation, an eligibility determination
must be made by a group of qualified professionals and the child's parents, and
this group must determine whether the child is a child with a disability as
defined in Part B of the Act. 34
CFR §300.534(a)(1). The public agency must provide the parent a copy of the
evaluation report and the documentation of the eligibility determination.
34 CFR §300.534(a)(2). In making the eligibility and placement
determination, that is, in determining whether the child is a child with a
disability and what the child's educational needs are, the public agency must
draw upon information from a variety of sources, including aptitude and
achievement tests, parent input, teacher recommendations, physical condition,
social or cultural background, and adaptive behavior, and ensure that
information obtained from all of those sources is documented and carefully
considered. 34 CFR §300.535(a). Question 8: Following the initial determination that a parentally-placed private school child is an eligible child with a disability under Part B, must the public agency develop an IEP for the child? Answer:
If a determination is made that the child needs special education and related
services, the general rule in 34 CFR §300.535(b) is that an IEP must be
developed for the child in accordance with 34 CFR §§300.340-300.350, with one
important exception. If the parents make clear their intention to enroll their
child at a private school and that they are not interested in a public program
or placement for their child, the public agency need not develop an IEP for the
child. If the parents choose not to accept the public agency's offer to make
FAPE available to their child, the public agency still must include the child in
its eligible population of parentally-placed private school children with
disabilities whose needs must be considered and addressed in accordance with 34
CFR §§300.450-300.462 of the Part B regulations. Question 9: Are public agencies required to conduct periodic reevaluations of parentally-placed private school children with disabilities, and if so, of which parentally-placed private school children? Answer: Yes. The requirements for reevaluations that are applicable to children with disabilities
served at public agency programs or at public agency placements at private
schools apply equally to parentally-placed private school children with
disabilities. Part B requires public agencies to conduct reevaluations of a
child with a disability , if conditions warrant a reevaluation, or if the
child's parent or teacher requests a reevaluation, but at least once every three
years. Before additional assessments are conducted, parents must give informed
consent. 34 CFR §300.536. Question 10: Can expenditures for reevaluations be considered in determining whether a public agency has met the expenditure requirements for services for parentally-placed private school children with disabilities? Answer: No. A reevaluation, as a part of child find, must be conducted at no cost to parents, and expenditures for reevaluations may not be considered in determining whether an LEA has met the requirement at 34 CFR §300.453(a) regarding expenditures for services for parentally-placed private school children with disabilities. 34 CFR §300.453(c). The three-year reevaluation requirement applies to all eligible parentally-placed private school children with disabilities, even to those parentally-placed private school children with disabilities who are not currently receiving special education or related services from a public agency in connection with a parental private school placement. It is essential for public agencies to ensure that required reevaluations of all parentally-placed private school children with disabilities are conducted because they provide current data for use in the annual count of the total number of eligible parentally-placed children with disabilities residing in the LEA's jurisdiction. This annual count of eligible parentally-placed private school children is used in calculating the proportionate share of funds that must be expended on services for this population of children. Question 11: Which LEA is responsible for child find and in meeting requirements for reevaluation if the private school the child attends is located outside of the LEA of the child's parents' residence? Answer:
SEAs and, consistent with State policy, LEAs, are responsible for ongoing
efforts to locate, identify, and evaluate all children residing in the State who
are suspected of having disabilities under Part B, so that FAPE is made
available to all eligible children. 34
CFR §§300.121, 300.125, and 300.220. Generally, as a matter of State law,
children are considered to reside in the home of their parents even if they
physically do not live there. This would mean that if a child attends a private
school located in an LEA (either in the same State or in another State) other
than the LEA in which the child's parents reside, the LEA in which the child's
parents reside generally would be responsible for child find, as well as
ensuring that required reevaluations are conducted, unless the State assigns
that responsibility to another entity. An
LEA has flexibility as to how it ensures these responsibilities are met. For
example, it may assume the responsibility itself, contract with another public
agency, or make other arrangements. If the LEA through child find identifies a
child as a child with a disability, and is not the entity responsible for child
find, that LEA should notify the resident LEA of the child's parents so that
required evaluations can occur. Question 12: Do parents who disagree with a public agency's child find determination with respect to their parentally-placed private school child have any recourse? Answer:
Yes. Parents may use the Act's due process procedures at §§300.504-300.5l5
regarding issues related to the identification and evaluation of children under
Part B. 34 CFR §300.457(b). This would include disputes regarding child find,
including individual evaluations, of children residing in the LEA 's
jurisdiction whose parents choose to enroll them in private schools. For
example, disagreements between parents and school districts involving the
child's eligibility for special education and related services, an LEA's refusal
to conduct an evaluation or reevaluation of an individual parentally-placed
private school child, or an LEA's refusal to conduct a requested evaluation or
reevaluation of an individual parentally-placed private school child within a
reasonable period of time, are all issues that could be raised in a due process
hearing. In addition, an organization or individual may file a signed written
complaint in accordance with the State complaint procedures at 34 CFR §§300.660-300.662
of the Part B regulations, alleging that an SEA or LEA has violated the
applicable child find requirement, including individual evaluation and
reevaluation requirements. Question 13: If parents reside in LEA A and enroll their child with a disability at a private school located in LEA B, which LEA is responsible for locating and evaluating that child, including that child in its annual count of eligible parentally-placed private school children with disabilities that is conducted for determining the expenditure requirement, and for determining whether the child should receive services under Part B? Answer:
The LEA of the parent's residence generally would be responsible for child find,
unless the State assigns that responsibility to some other entity. 34 CFR §§300.125
and 300.220. If the non-resident
LEA identifies a child as a child suspected of having a disability, the
non-resident LEA should notify the LEA of the parent's residence so that
appropriate evaluations can occur. The
LEA in which the child's parent's reside would also be responsible for including
the child in the count of eligible parentally-placed private school children
with disabilities, regardless of whether the child has been designated to
receive services from that LEA. 34
CFR §300.453. Through consultation
conducted in accordance with 34 CFR §300.454, the LEA of the parent's residence
must consider the needs of parentally-placed private school children with
disabilities residing in the agency's jurisdiction, even though those students
have been enrolled by their parents in private schools located outside of the
district's boundaries. The LEA of the parent's residence, however, after
consultation with representatives of parentally-placed private school children,
could elect not to serve those children in light of the available funds that
must be expended on services for this population of children. II. Annual Expenditures for Parentally-placed Private School Children with Disabilities Question 14: How is the proportionate share for expenditures for services for parentally-placed private school children with disabilities calculated? Answer: IDEA '97 confirms the Department's longstanding interpretation that each LEA must expend, during the grant period, on the provision of special education and related services for the parentally-placed private school children with disabilities residing in the LEA's jurisdiction an amount that is equal to-- (1) a proportionate share of the LEA's sub grant under Section 611(g) of the Act for children with disabilities aged 3 through 21. This is an amount that is the same proportion of the LEA's total subgrant under section 611(g) of the Act as the number of parentally-placed private school children with disabilities aged 3 through 21 residing in the LEA's jurisdiction is to the total number of children with disabilities in the LEA's jurisdiction aged 3 through 21; and (2) a proportionate share of the LEA's sub grant under section 619(g) of the Act for children with disabilities aged 3 through 5. This is an amount that is the same proportion of the LEA's total sub grant under section 619(g) of the Act as the total number of parentally-placed private school children with disabilities aged 3 through 5 residing in the LEA's jurisdiction is to the total number of children with disabilities in the LEA's jurisdiction aged 3 through 5. 20 U.S.C. §1412(a)(10)(A)(i)(I); 34 CFR §300.453(a). Consistent with this statutory requirement and the final Part B regulation implementing this requirement, annual expenditures for parentally-placed private school children with disabilities are calculated based on the total number of children with disabilities residing in the LEA's jurisdiction eligible to receive special education and related services under Part B, as compared with the total number of eligible parentally-placed private school children with disabilities residing in the LEA's jurisdiction. 34 CFR §300.453(a). This ratio is used to determine the proportion of the LEA's total Part B subgrants under section 611(g) for children aged 3 through 21, and under section 619(g) for children aged 3 through 5, that is to be expended on services for parentally-placed private school children with disabilities residing in the LEA's jurisdiction. The
following is an example of how the proportionate share is calculated: A
graphic representation of the above description on how the proportionate share
is calculated is provided in Attachment 1. Question 15: Is the proportionate share based on the number of children with disabilities receiving special education or related services in accordance with a services plan, or on the total number of eligible private school children with disabilities residing in the LEA's jurisdiction? Answer:
The proportionate share is determined based on the total number of eligible
parentally-placed private school children with disabilities residing in the
LEA's jurisdiction, and is not limited to the number of those children receiving
special education or related services in accordance with a services plan. Question 16: When must LEAs conduct the annual count of eligible parentally-placed private school children with disabilities residing in their jurisdiction (the Count required at §300.453)? Answer:
SEAs must decide, on a Statewide basis, (either December 1 or the last Friday in
October) the date on which their LEAs will conduct the annual count of the total
number of eligible parentally-placed children with disabilities. LEAs and SEAs
are already counting children with disabilities who are receiving special
education and related services either on December 1 or the last Friday in
October of each year, and the SEA must conduct the annual count of eligible
parentally-placed private school children with disabilities on the same date.
Using the same date on a Statewide basis should reduce the amount of
double counting of private school children with disabilities who move from one
location to another, and should give States the same flexibility they have with
regard to counting other children with disabilities who are receiving services
under Part B of the Act. Question 17: In meeting the requirement to expend a proportionate share of available Federal funds on services for parentally-placed private school children with disabilities residing in their jurisdiction, may LEAs use funds other than Federal funds? Answer:
Yes. Section 612(a)(10)(A)(i) describes the minimum amount that must be spent on
services for parentally-placed private school children with disabilities and
does not specify that only Federal funds can be used to satisfy this obligation.
Thus, if a State or LEA uses other funds other than Part B funds to provide
special education and related services to parentally-placed private school
children with disabilities, those funds can be considered in satisfying the
expenditure requirements of 20 U.S.C. §1412(a)(10)(A)(i)(I) and 34 CFR §300.453,
so long as the services are provided in accordance with the other provisions of
§§300.452-300.462. See Analysis of Comments and Changes, Attachment 1 to the
final regulations, 64 Fed. Reg. at 12603 (Mar. 12, 1999). Question 18: May State or local funds be used to provide services to parentally-placed private school children with disabilities in excess of the services provided for this population of children with the proportionate share of available funds? Answer:
Yes. SEAs and LEAs are not prohibited from providing services to
parentally-placed private school children with disabilities in excess of those
provided with the proportionate share of Part B funds, if doing so is consistent
with State law or local policy. §34 CFR 300.453(d) and Analysis of Comments and
Changes, published as Attachment 1 to the final regulations, 64 Fed. Reg. at
12603 (Mar. 12, 1999). Question 19: How are Part B funds distributed now that the permanent funding formula is in effect? Answer: Until the appropriation under section 611(j) of the Act exceeds $4,924,672,200 under the funding formula applicable to the Grants to States program, authorized by §611 (g) of IDEA, funds were allocated to States under the interim formula. 34 CFR §300.703(b). Under the interim formula, funds were allocated to States, and through them to LEAs, based on an annual count of children with disabilities receiving special education and related services on the count date, and, in the case of parentally-placed private school children with disabilities, those receiving special education or related services on the count date. Now that the appropriation under section 611(j) of the Act exceeds $4,924,672,200, funds will be allocated to States, and through them to LEAs, under the permanent formula. Thus, the permanent formula will be used to distribute Part B Grants to States funds to States on or about July 1, 2000, and allocations will no longer be based on an annual count of children receiving special education arid related services on the count date. The permanent formula previously has taken effect for the Preschool Grants Program. Under the permanent formula, it will still be important for SEAs and LEAs to maintain accurate data about the number of parentally-placed private school children with disabilities receiving special education or related services and the total number of eligible parentally-placed private school children with disabilities. The State allocation under the permanent formula to each LEA that has established its eligibility under section 613 of the Act is the total of three amounts:
Therefore,
funds generated by LEAs for FFY 1999 for parentally-placed private school
children with disabilities who were receiving special education or related
services under §§ 300.452-300-462 that meet State standards on the count date
were included in calculating an LEA's base payment under the permanent formula.
(34 CFR 300.453 (a)(3)) Question 20: Under the permanent formula, will it still be necessary to conduct an annual count of parentally-placed private school children with disabilities? Answer:
Yes. The count still will be required under 34 CFR §300.453 of the part B
regulations for purposes of determining the total number of eligible
parentally-placed private school children with disabilities residing in the
LEA's jurisdiction. This information is required for purposes of calculating the
proportionate share that an LEA is required to expend on an annual basis for the
provision of special education and related services for its population of
parentally-placed private school children with disabilities. In addition, the
count of children served that is conducted under 34 CFR §300.751 will still be
required. Question 21: In the permanent formula, 85 percent of funds above the base payment are distributed on the basis of the "relative numbers of children enrolled in public and private elementary and secondary schools within each agency's jurisdiction." What does this mean since some parentally-placed private school children live in the jurisdiction of the LEA but are enrolled in a private school outside of the LEA' s jurisdiction? Answer:
In allocating 85 percent of any remaining funds to LEAs based on the relative
numbers of children enrolled in public and private elementary and secondary
schools within each agency's jurisdiction, States must apply on a uniform basis
across all LEAs the best data that are available to them.
34 CFR §300.712(b)(3)(iii). It
is within the State's discretion to determine whether the LEA where the private
school is located or the LEA of the parent's residence should include the child
in its private school enrollment count. A
State could determine, for example, that a child whose parents reside in LEA A
and attends a private school located in the boundaries of LEA B is enrolled in
LEA B in calculating the percentage of funds allocated to an LEA based on the
relative numbers of children enrolled in public school and private elementary
and secondary schools in the LEA's jurisdiction. While States have flexibility
in this area, a uniform rule must be applied on a Statewide basis. These
children would then need to be in the group of parentally-placed children with
disabilities whose needs must be considered by the LEA in determining which
parentally-placed private school children with disabilities will be served and
the types and amounts of services to be provided to eligible children. III. Provision of Services Question 22: Are there any particular kinds of services, and specified amounts of services, to be provided to parentally-placed private school children with disabilities under Part B? Answer:
No. No parentally-placed private school child with a disability has an
individual right to special education and related services under Part B. 34 CFR
§300.454(a). Therefore, the responsible public agency is not required to
provide a parentally-placed private school disabled child with some or all of
the special education and related services that the child would receive if
enrolled in a public school. This reflects the Department's longstanding
interpretation of the limitations of SEAs' and LEAs' statutory obligations to
make services available to the population of eligible parentally-placed private
school children with disabilities, in light of the limited amount of funds that
LEAs must expend on services for these children. Question 23: How are decisions made about the services that are to be provided to parentally-placed private school children with disabilities, including the type and location of such services, in light of the limited amount of funds that must be expended annually on services for this population of children? Answer: Each LEA must consult, in a timely and meaningful way, with appropriate representatives of parentally-placed private school children with disabilities, in light of the minimum amount of Part B funds that must be expended for services for this population of children, on the number of parentally-placed private school children with disabilities, the needs of those children, and their location. Through this consultation process, decisions are made about which parentally-placed private school children with disabilities will receive services, what services will be provided, how and where the services will be provided, including the timing and location of the services provided, and how the services provided will be evaluated. Each LEA must give appropriate representatives of parentally-placed private school children with disabilities a genuine opportunity to express their views regarding each matter that is the subject of the consultation process. However, the LEA makes the final decision about which eligible children will receive services, the services to be provided to eligible parentally-placed private school children with disabilities, and where the services will be provided. 34 CFR §300.454(b)(1),
(2), and (4). Question 24: When must consultation about services occur? Answer:
Consultation about the provision of services must occur, in a timely and
meaningful way, before the LEA makes any decision that affects the opportunities
of parentally-placed private school children with disabilities to participate in
services provided under Part B requirements to those children. 34 CFR§300.454(b)(3).
The needs of parentally-placed private school children with disabilities,
their number and location, may vary over time, depending on the circumstances in
a particular LEA in a particular year. As there is no specific schedule for
consultation with appropriate representatives of parentally-placed private
school children with disabilities, States and LEAs are able to determine the
appropriate period between consultations based on circumstances in their
jurisdictions. Many jurisdictions have found that it works well when
consultation takes place, at a minimum, to review the child find process,
discuss the child count, and plan the services being offered prior to each
school year. The regulations do not include specific requirements regarding
matters such as public notice of meetings, public transcripts of meetings,
explanations of amounts and frequency of services provided, or explanations of
refusals to provide services, changes in the manner in which services are
provided, or the manner in which funds are allocated, leaving these issues to
State and local authorities. Question 25: Which individuals are appropriate representatives of parentally-placed private school children with disabilities? What about parents of such children? Answer:
Part B does not specify which individuals are "appropriate
representatives" of parentally-placed private school children with
disabilities. However, since one aspect of consultation is intended to discuss
the needs of children with disabilities placed in private schools by their
parents, it would be reasonable for parents to be considered "appropriate
representatives" of such children. Other appropriate representatives of
parentally-placed private school children might be teachers, principals, and, in
the case of private school systems, central office administrators responsible
for federal program services and/or special education. Whether parents of
home-schooled children or other representatives of home-schooled children should
be considered "appropriate representatives" of parentally-placed
private school children with disabilities depends on whether under State law,
home schooling is regarded as parental placement at private school. Question 26: Is it possible for an LEA, through consultation with appropriate representatives of parentally-placed private school children with disabilities, to provide only certain direct services to those parentally-placed private school children with disabilities designated to receive services? Answer:
Yes. Based on relevant input from consultation, and in light of available
funding, it could be reasonable for an LEA to conclude that providing direct
services would ensure that those parentally-placed private school children with
disabilities selected to receive services will derive a benefit from the
services offered. For example, an LEA could determine through consultation that
providing direct services for fewer children would be more beneficial in
addressing the needs of its parentally-placed private school children with
disabilities than providing consultative services, instructional materials,
equipment, or teacher training. Question 27: Is it possible for an LEA, through consultation with appropriate representatives of parentally-placed private school children with disabilities, to determine that it will provide no direct services to its eligible parentally-placed private school children with disabilities, but that instead, the LEA will provide consultative services, or equipment and teacher training? Answer:
Yes. Through the consultation described above, determinations must be made about
how the available amount of funds can be utilized so that the parentally-placed
private school children with disabilities designated to receive services can
benefit from the services offered. The
regulations specify that the LEA makes the final decision with respect to
services to be provided to eligible parentally-placed private school children
with disabilities, (34 CFR §300.454(b)(4)), based in part on input provided
through the consultation process by appropriate representatives of
parentally-placed private school children with disabilities, (34 CFR §300.454(b)(3)).
Depending on local circumstances and the amount of funds available for
expenditures for this population of children, it could be reasonable for an LEA
to conclude that, in lieu of direct services, its parentally-placed private
school children with disabilities should be provided with consultative services,
equipment and materials, and that training will be provided for private school
teachers and other private school personnel. If consultative services are provided to a private school teacher, as a means of providing special education and related services to a particular private school child with a disability, there may be situations where that teacher uses the acquired skills to provide education to other children as well. However, whatever benefit those other children receive is incidental to the publicly-funded services. As is true if direct services are provided, LEAs that elect to provide consultative services to their parentally-placed private school children with disabilities also must develop a services plan for each child receiving those services in accordance with 34 CFR §300.455(b). Question 28: How would a services plan be develvped for a parentally-placed private school child with a disability receiving consultative services? Answer: Any parentally-placed private school child with a disability whom an LEA elects to serve must have a services plan. 34 CFR §300.454(c). Each child's services plan must contain, among other elements, a statement of the special education, related services, and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to advance appropriately toward attaining his or her annual goals, to be involved and progress in the general curriculum, and to participate in extracurricular and other nonacademic programs. Consultation between a regular education teacher and a special education teacher could allow the regular educator to provide special education, which consists of specially designed instruction that
meets State education standards and is individually-designed for an individual
student, or a related service, if that service is required to assist a child
with a disability to benefit from special education. Consultative services also
could be considered a supplementary aid or service if provided to facilitate a
student's education in regular classes alongside his or her nondisabled peers
(see 34 CFR §300.28) or a support for school personnel, if provided to enable
the child to advance appropriately toward attaining the annual goals and to be
involved and progress in the general curriculum. Question 29: Could an LEA, through consultation with appropriate representatives of parentally-placed private school children with disabilities, decide to provide services that address some of the needs of parentally-placed private school children with disabilities? Answer: Yes. As noted previously, an LEA must conduct child find for all children enrolled in private schools by their parents who are suspected of having disabilities, regardless of the category of their suspected disability. However, once determined eligible, an LEA must, through the consultation process previously described, determine, among other matters, which parentally-placed private school children with disabilities will receive services, what services will be provided, and the manner in which those parentally-placed private school children with disabilities selected to receive services will be served. An LEA could properly conclude that it will provide only certain services which may mean that needs commonly associated with one or more disability categories are not met, and that only some of the needs of a child who is served are met. An LEA could decide, through consultation, not to serve any parentally-placed private school
children with disabilities who are enrolled at one or more private schools, but
instead to limit the services the LEA is offering with the available amount of
funds to parentally-placed private school children with disabilities enrolled at
only one private school. Question 30: Is there any requirement for parentally-placed private school children with disabilities to have IEPs? Answer:
No. Current regulations provide that each parentally-placed private school child
with a disability who has been designated to receive services from the LEA must
have a services plan that describes the specific special education and related
services that the LEA will provide to the child in light of the services that
the LEA has determined, through the consultation process, that it will make
available to its parentally-placed private school children with disabilities.
34 CFR §300.455(b)(1). Question 31: Must services plans be in place for all eligible parentally-placed private school children with disabilities residing in the LEA's jurisdiction? Answer:
No. The Part B regulations do not require public agencies to develop services
plans for each and every parentally-placed private school child with a
disability residing in the LEA's jurisdiction, regardless of whether that child
receives services from the LEA. Services
plans are required only for those parentally-placed private school children with
disabilities whom the LEA has elected to serve, and must reflect only the
services that the LEA has determined it will provide to the particular
parentally-placed child with a disability. Question 32: How must a services plan be developed? Answer:
A services plan must be developed, reviewed, and revised consistent with §§300.342-300.346
of the Part B regulations. The LEA is responsible for initiating and conducting
meetings to develop a services plan in accordance with these requirements. The
LEA must ensure that a representative of the religious or other private school
attends each services plan meeting, and if the representative cannot attend, the
LEA must use other methods to ensure participation by the private school,
including individual or conference telephone calls. Question 33: What must a services plan contain? Answer: As noted above, a services plan, which must reflect only the services offered to a parentally-placed private school child with a disability designated to receive services, must, to the extent appropriate, meet the IEP content requirements in 34 CFR §300.347. Since students with disabilities who are entitled to FAPE must receive the full range of services under Part B, their IEPs generally will be more comprehensive than the more limited services plans developed and implemented for those parentally-placed private school children with disabilities designated to receive services from an LEA. The requirement that a services plan meet the requirements of an IEP, to the extent appropriate, will ensure that the services actually provided to a parentally-placed private school child with a disability will meaningfully address the child's individual needs. Example: An LEA has elected to serve an individual parentally-placed private school child with a disability who has speech needs through the provision of speech-language pathology services. The
child's services plan would specify the present levels of educational
performance in this area, and how the child's speech-language disability affects
the child's ability to be involved and progress in the general curriculum.
Measurable annual goals for this child would be specific to the speech-language
pathology services to be provided, and would enhance the child's ability to be
involved in and progress in the general curriculum. The services plan would also
specify the amount, frequency, location, and duration of the services to be
provided in accordance with 34 CFR §300.347(a)(6) and how the child's parents
will be informed of the child's progress, in accordance with 34 CFR §300.347(a)(7).
Whether other content requirements at 34 CFR §300.347 would have to be
addressed in a services plan would have to be determined on a case-by-case
basis, depending on the services that are provided. Question 34: Are there any remedies available to parents who dispute the services offered or provided to their child in connection with the parental private school placement? Answer:
Since eligible parentally-placed private school children with disabilities do
not have an individual entitlement to services under Part B, the due process
procedures in Part B of the Act do not apply to complaints that an LEA has
failed to meet applicable requirements for serving these children, including an
LEA's alleged failure to provide the services specified on a child's services
plan. However, an organization or
individual may file a signed written complaint under the applicable State
complaint procedures at 34 CFR §§300.660-300.662 alleging that an SEA or LEA
has failed to meet the requirements in 34 CFR §§300.45l-300.462, such as
failure to properly conduct the consultation process. On the other hand, as is
true with respect to due process complaints, a State complaint alleging that an
LEA has failed to offer services to a particular parentally-placed private
school child with a disability would not violate Part B, since no
parentally-placed private school child with a disability has an individual
entitlement to services under Part B. 34 CFR §300.454(a). IV. Location of Services Question 35: How are decisions made about the location of services that the LEA has selected through consultation to offer to its parentally-placed private school children with disabilities? Answer:
As is true regarding the services that an LEA has selected to provide its
parentally-placed private school children with disabilities designated to
receive services, the location of services also is a matter that is detennined
through the process of consultation between LEA officials and appropriate
representatives of parentally-placed private school children with disabilities.
Services offered to parentally-placed private school children with disabilities
may be provided on-site at a child's private school, including a religious
school, to the extent consistent with law, or at another location. The phrase
"consistent with law" is statutory, and means that the provision of
services on the premises of a private school takes place in a manner that would
not violate the Establishment Clause of the First Amendment to the U .S.
Constitution and would not be inconsistent with applicable State constitutions
or laws. The provision of services at private school sites will help to minimize
the amounts and time spent on transportation.
In addition, this should cause the least disruption in the children's
education. Since some States do not
allow services to be provided at the private school site, LEAs may wish
to seek legal advice before making service location determinations. Question 36: If transportation would be a related service for a child with a disability, had the child been served directly in a public agency program or a public agency placement at a private school, would transportation automatically become a related service for a parentally-placed private school child with a disability who is designated to receive services from the LEA? Answer:
Regardless of whether transportation would be a related service for a child with
a disability, transportation may be necessary for an individual child.
If services are offered at a site separate from the child's private
school, transportation may be necessary to get the child to and from that other
site. Failure to provide transportation could effectively deny the child an
opportunity to benefit from the services that the LEA has determined through
consultation to offer its parentally-placed private school children with
disabilities. In this situation, transportation is not a related service, as
defined at 34 CFR §300.24(b)(15), but it still is a necessary means of making
the services that are offered accessible to the child. Question 37: Could an LEA refuse to provide transportation to parentally-placed private school children with disabilities who reside in its jurisdiction but who attend private schools located outside of the LEA's boundaries? Answer:
LEAs are encouraged to work in consultation with appropriate representatives
of parentally-placed private school children with disabilities to ensure that
services are provided at sites that will not require significant transportation
costs. Therefore, it may be reasonable for an LEA, through the consultation
process, to elect not to provide services to a child who attends a private
school outside the district. However, if any child is selected for services and
the service is provided away from the school the child attends, the child must
be provided transportation to the service if it is necessary for the child to
benefit from or participate in the service. Therefore, it may not be
unreasonable for an LEA to elect not to provide services to parentally-placed
private school children with disabilities who reside in the LEA' s jurisdiction
but who attend private schools located outside of the LEA's boundaries because
of the increased costs involved. V. Miscellaneous Question 38: Are the requirements for children with disabilities aged 3 through 5 who are placed by their parents at private preschool programs, including home daycare programs, the same as the requirements for children with disabilities parentally-placed private elementary and secondary schools? Answer:
Yes. The Department interprets the requirements at 20 U.S.C. §1412(a)(10)(A)
and 34 CFR §§300.450-300.462 to be fully applicable to children with
disabilities aged 3 through 5 who have been placed by their parents at private
schools. Many preschool-aged children also attend a broad range of child care
settings. Whether a private daycare program conducted in the home or otherwise
outside of the administrative control of a public agency can be considered a
private preschool depends on the State definition of "private school."
That a day care program is licensed under State health and safety and other day
care requirements does not make the day care program a "private
school" unless the State definition so specifies. Assuming
a child of preschool age is enrolled by his or her parents at a private
preschool that satisfies the State definition, the same procedures that govern
children with disabilities parentally-placed in private elementary and secondary
schools in the State would be applicable. The child would have to be evaluated in accordance with the
Part B requirements at 34 CFR §§300.532.-300.533, subject to informed parental
consent, and determined eligible in accordance with 34 CFR §300.535. Once
determined eligible, the affected LEA would offer to make FAPE available at a
public agency program or a public agency placement at a private school. In some
situations, if the parents were interested in having their child participate in
the publicly available services, the public agency could determine that the
services specified in the IEP developed for the child could be appropriately
implemented in the daycare setting selected by the parent at no cost to the
parents. If
the parents choose not to accept the public program or placement offered, and if
the parents enroll the child in a private preschool recognized under the State's
definition, the public agency must include the child in the group of
parentally-placed private school children with disabilities whose needs must be
considered through the consultation process at 34 CFR §300.454(a)-(b) described
below. A
parentally-placed private preschool-aged child with a disability who attends a
program recognized under the State definition of private school and is
designated to receive services from a public agency must have a services plan in
accordance with 34 CFR §300.454(c) and §300.455 with respect to the services
offered. As is true for services offered to parentally-placed private school
children with disabilities in other age groups, services offered to
preschool-aged children with disabilities may be provided on the premises of the
private program, including a religious school, to the extent consistent with
law. 34 CFR §300.456(a).
Children in that age group who attend programs recognized under the State
definition of private school designated to receive services can be served
through the proportionate share of available section 611 and 619 funds that must
be expended on services for this population of children. The LEA's annual count
of parentally-placed private school children with disabilities residing in the
LEA's jurisdiction conducted under 34 CFR §300.453(b) must include all children
with disabilities who attend private schools recognized under the State
definition. However, children with disabilities parentally-placed at private
programs that do not meet the State definition of private school cannot receive
services under Part B and cannot be included in the annual count of
parentally-placed private school children with disabilities aged 3 through 5. Question 39: Are children with disabilities placed by their parents at private schools entitled to a free appropriate public education at the private school? Answer:
No. Children with disabilities placed by their parents at private schools are
not entitled to a free appropriate public education (FAPE) in connection with
their parental private school placements. States
receiving funds under Part B of IDEA, as a condition of receipt of those funds,
must make FAPE available to all children with disabilities residing in the State
in mandatory age ranges. 20 U.S.C. §1412(a)(1)(A); 34 CFR §300.l21. States
satisfy their FAPE obligation to their resident parentally-placed private school
children with disabilities by offering them FAPE either at a public agency or at
a public agency placement at a private school.
However, LEAs generally must consider and address the needs of eligible
parentally-placed private school children with disabilities residing in their
jurisdiction. Question 40: If parents choose to enroll their child with a disability at a private school because of their preference for the private school, are there any circumstances in which a public agency would be required to make FAPE available to such a child in the future? Answer: The public agency must include these children in its eligible population of parentally-placed private school children with disabilities whose needs must be considered in accordance with 34 CFR §§300.450-300.462 of the Part B regulations. In
addition, as is true for other children with disabilities, the public agency
must evaluate every parentally-placed private school child with a disability at
least every three years in accordance with the requirements of 34 CFR §§300.532-300.533
to determine a child's continued eligibility for special education and related
services. If the parents withdraw their child with a disability from the private
school placement that they have selected and return their child to the public
school, the public agency again must make FAPE available to the child either in
the public agency or a public agency placement at another public school or at a
private school. Question 41: Are there any particular qualifications that are applicable to personnel who provide special education or related services to those parenta1ly-placed private school children with disabilities LEAs elect to serve? Answer:
Yes. Services provided to parentally-placed private school children with
disabilities must be provided by personnel meeting the same standards as
personnel providing such services in public schools. Funds awarded under Part B,
sections 611 and 619, may be used to make public school personnel available in
other than public facilities to the extent necessary to provide services to
parentally-placed private school children with disabilities under Part B, if
those services are not normally provided by the private school. In addition, if
private school personnel provide the services that the LEA has determined it
will provide to its parentally-placed private school children with disabilities,
the private school personnel must meet the same standards as personnel providing
services in public schools, must perform the services outside of his or her
regular hours of duty, and must perform the service under public supervision and
control. 34 CFR §§300.455(a) and 300.460-300.461. Question 42: How could a State educational agency monitor to ensure that parentally-placed private school children with disabilities are being served in a manner that complies with Part B? Answer:
Each SEA must exercise general supervision over all education programs for
children with disabilities administered by public agencies in the State and must
ensure that such programs meet State education standards and Part B
requirements. Accordingly, an SEA is required to have a method of monitoring its
public agencies to ensure that they are meeting the statutory and regulatory
requirements applicable to services for parentally-placed private school
children with disabilities. An SEA
also would be required to ensure that those parentally-placed private school
children with disabilities whom the LEA has elected to serve are receiving
special education or related services in accordance with a services plan. Question 43: How can representatives of parentally-placed private school children with disabilities, including parents of these children, have input into OSEP's reviews of States as part of its continuing improvement monitoring process? Answer:
In monitoring each State, OSEP conducts extensive validation planning activities
to help focus its data collection on those issues that are most critical to
improving compliance and results for students with disabilities in the State.
The validation planning process includes a number of public input forums in
which individuals and groups, including parents of parentally-placed private
school children with disabilities and other representatives of these children,
can provide input regarding the issues that they believe should be a focus of
OSEP's data collection in the State. Further, as part of the monitoring process,
each State establishes a steering committee that helps the SEA conduct a
self-assessment of the State's services for children with disabilities and
provides input to OSEP. This committee may, at the State' s discretion, include
representatives of parentally-placed private school children with disabilities.
Further, each State advisory panel on the education of children with
disabilities must include representatives of parentally-placed private school
children with disabilities. Among the functions of this panel are to advise the
SEA in developing corrective action plans to address findings identified in
Federal monitoring reports under Part B of the Act. Organizations or individuals
that have specific questions or concerns about services for parentally-placed
private school children with disabilities in their State should contact their
local school district, State Department of Education special education division,
or the OSEP State contact for Part B in the Monitoring and State Improvement
Planning Division. A list of the OSEP State contacts can be found on the OSEP
web page at http://www.ed.gov/offices/OSERS/OSEP/state_contact_list.html Question 44: Is home school considered a private school? What if a child is below a State's compulsory school age and receiving services from an unapproved or uncertified home day care or other location strictly for childcare purposes? Answer:
Whether home schools are "private schools," including home day care,
is determined by the State. If the State recognizes home schools or home day
care as private schools, children with disabilities in those home schools or
home day care must be treated in the same way as other parentally-placed private
school children with disabilities. If the State does not recognize home schools
or home day care as private schools, children with disabilities who are
home-schooled or in home day care are still covered by the child find
obligations of SEAs and LEAs, and these agencies must ensure that home-schooled
children and those in home day care who have disabilities are located,
identified, and evaluated, and that FAPE is available if their parents choose to
enroll them in public schools. Question 45: If under State law, dual enrollment of a child in both a public agency program and a private school is required in order for the child to receive special education and related services from a public agency in connection with a parental private school placement, does the parentally-placed private school child with a disability have a right to FAPE? Answer:
The Part B regulations make clear that no parentally-placed private school child
with a disability has an individual entitlement to services.
34 CFR §300.454(a). Whether dual enrollment alters the rights of a
parentally-placed private school child with a disability under State law is a
State matter. There is nothing in Part B that would prohibit a State from
requiring dual enrollment as a condition of eligibility of a parentally-placed
private school child with a disability for services from a public agency Attachment
1 FOR
FLINTSTONE SCHOOL DISTRICT: AT
DECEMBER 1 CHILD COUNT: FEDERAL
FLOW-THROUGH FUNDS TO FLINTSTONE SCHOOL DISTRICT: FORMULA FOR CALCULATING PROPORTIONATE SHARE:
Note: Proportionate share for parentally-placed private school children is based on total children eligible, not children served. FLINTSTONE SCHOOL DISTRICT OBLIGATION:
X = $9,531.25 (This amount must be spent for the group of parentally-placed children in private schools) |
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Missouri Department of Elementary and Secondary Education Division of Special Education - Compliance P.O. Box 480 Jefferson City, MO 65102 Email: webreplyspeco@dese.mo.gov Phone: 573-751-0699 Revised: April 18, 2005 |
