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March 2006: Update: The U.S. Department of Education issues Guidance after the 2004 amendmentsThe statutory revisions to the IDEA in 2004 significantly changed the obligation of states and local education agencies (LEAs) to children with disabilities enrolled by their parents in private elementary and secondary schools. While previously it was the responsibility of the LEAs in which the parents resided to conduct child find and provide equitable services to these students, that responsibility has now shifted to the LEAs in which the private schools are located.Questions and Answers On Serving Children With Disabilities Placed by Their Parents at Private Schools A series of questions and answers addressing the obligation, under IDEA 2004, of states and local education agencies to children with disabilities enrolled by their parents in private elementary schools and secondary schools. (March 2006) Word (83K) | PDF (144K) Effect: While most of private school requirements of IDEA remained the same, the 2004 Amendments made two significant changes: 1) the responsible school district becomes the one in which the private school sits. 2) private schools gain power to bring complaints if the LEA does not offer sufficient services. |
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The new law does not
expand the amount of funding that must be spent on children with
disabilities placed by their parents in private schools, but it alters
the allocation requirements and strives to insure that funding actually
is provided. The fundamental duty is that the state educational agency
and local school districts must provide services to private school
children with disabilities consistent with the number and location of
those children in the state, and that districts must devote funding to
the education of the children in the amount of federal special
education money that is proportionate to the number of children
enrolled in private schools within the district. [cite to 20 U.S.C.
sec1412 (a)(10)] The school district has to employ a child-find
process, in consultation with private school representatives, to learn
the number of children with disabilities in private schools, so as to
determine the proportionate amount to allocate[cite to 20
U.S.C. sec1412 (a)(10)] The
allocations are to be proportionate to the number of private school
children going to private schools in the district, [cite to 20
U.S.C. sec1412 (a)(10)] not proportionate to the number of
private school students resident there, as the previous law
required. [cite to 20 U.S.C. sec1412 (a)(10)] Beyond these basics,
IDEIA incorporates a number of provisions, specifically obligations to
consult with private school representatives about whom to serve and how
to serve them, that previously were found only in the Department of
Education regulations. [cite to 20 U.S.C. sec1412 (a)(10)] It then goes one step further by
requiring school districts to obtain a written affirmation that a
timely and meaningful consultation took place and by conferring on
private schools the ability to file complaints with the state
educational agency, and ultimately the United States Department of
Education, if they do not like what the school district offers their
students. [cite to 20 U.S.C.
sec1412 (a)(10)] The new law does not alter previous regulatory provisions establishing that children eligible for special education who are placed in private school by their parents for religious or other reasons lack an individual entitlement to special education and related services, and that the parents can exercise due process hearing rights only with respect to complaints about failure to identify, locate, and evaluate their children, not complaints about failure to serve them or to serve them as fully as the parents would like. [cite to 20 U.S.C. sec1412 (a)(10)] Accordingly, the proposed regulations retain those provisions. [cite to 70 Fed. Reg. 35,846-47 (proposed June 21, 2005) (to be codified at 34 C.F.R. §§ 300.137(a) (no individual right to services), 300.140(a) (no due process rights))* The departure from previous law and practice, then, is the congressional addition of an exclamation point to the old regulatory provisions, by writing them into the statute and strengthening the procedural obligations placed on school districts. * 34 C.F.R. § 300.454(a) (2004); see K.R. v. Anderson Cmty. Sch. Corp., 125 F.3d 1017, 1019 (7th Cir. 1997) ("[T]he [1997] Amendments [to the federal special education law] unambiguously show that participating states and localities have no obligation to spend their money to ensure that disabled children who have chosen to enroll in private schools will receive publicly funded special-education services generally 'comparable' to those provided to public-school children."). |
link to ISBE and OSEP memo
Zobrest-U.S. Supreme Court opinion
Illinois School Code re part time attendance
Illinois Special Ed Regulations re private schools
Federal Special Ed Regulations re private schools
No due process remedy for homeschoolers.
Court orders reimbursement to parent for her services
Necessity of Parents' consent to a placement
The law is constantly changing. Do not rely upon this document as legal advice |
http://www.isbe.state.il.us/spec-ed/PDF/ParentPlacementPrivate.pdf
New: July 25, 2006 updates: http://www.isbe.state.il.us/spec-ed/pdfs/guidance_06-2.pdfZOBREST v. CATALINA FOOTHILLS SCH. DIST., 509 U.S. 1 (1993)
Summary: The Establishment Clause does not prevent respondent from furnishing a disabled child enrolled in a sectarian school with a sign-language interpreter in order to facilitate his education. Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Mueller v. Allen, 463 U.S. 388 ; Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 . The same reasoning used in Mueller and Witters applies here. The service in this case is part of a general government program that distributes benefits neutrally to any child qualifying as disabled under the IDEA, without regard to the sectarian-nonsectarian, or public-nonpublic nature of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of individual parents' private decisions. Since the IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter's presence there cannot be attributed to state decisionmaking. The fact that a public employee will be physically present in a sectarian school does not by itself make this the same type of aid that was disapproved in Meek v. Pittenger, 421 U.S. 349 , and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 . In those cases, the challenged programs gave direct grants of government aid - instructional equipment and material, teachers, and guidance counselors - which relieved sectarian schools of costs they otherwise would have borne in educating their students. Here, the child is the primary beneficiary, and the school receives only an incidental benefit. In addition, an interpreter, unlike a teacher or guidance counselor, neither adds to nor subtracts from the sectarian school's environment, but merely interprets whatever material is presented to the class as a whole. There is no absolute bar to the placing of a public employee in a sectarian school. Pp. 8-14.
Sec. 14-6.01. Powers and duties of school boards. .... Such school boards shall accept in part-time attendance children with disabilities of the types described in Sections 14-1.02 through 14-1.07 who are enrolled in nonpublic schools. .... Special educational services shall be provided to such students as soon as possible after the identification, evaluation and placement procedures provided in Section 14-8.02, but no later than the beginning of the next school semester following the completion of such procedures. Transportation for students in part time attendance shall be provided only if required in the child's individualized educational program on the basis of the child's disabling condition or as the special education program location may require.Sec. 14-7.02. Children attending private schools, public out-of-state schools, public school residential facilities or private special education facilities. The General Assembly recognizes that non-public schools or special education facilities provide an important service in the educational system in Illinois.
If because of his or her disability the special education program of a district is unable to meet the needs of a child and the child attends a non-public school or special education facility, a public out-of-state school or a special education facility owned and operated by a county government unit that provides special educational services required by the child and is in compliance with the appropriate rules and regulations of the State Superintendent of Education, the school district in which the child is a resident shall pay the actual cost of tuition for special education and related services provided during the regular school term and during the summer school term if the child'seducational needs so require ...
Article 14 of the Illinois School Code has other provisions dealing
with Special Education.
a) Disagreements between a parent and a school district regarding the district’s provision of an appropriate program for a particular child shall be resolved by means of the due process afforded pursuant to Subpart G of this Part.
b) No child who is placed into a nonpublic facility by his or her parent(s) without the consent or referral of the local school district has an individual right to receive the special education and related services that the child would receive if enrolled in the district. Instead, a district’s services to such children are subject to the provisions of Section 226.350 of this Part.
1) Each school district shall consult annually with representatives of private schools in light of the funding available for serving their students, the number of such students, their needs, and their respective locations to decide:b) The services provided by a school district to children with disabilities enrolled in private schools shall be comparable in quality to the services provided to eligible children enrolled in the district. “Comparable in quality” means provided by similarly qualified personnel.A) Which children will receive services;2) Each school district shall give representatives of private schools a genuine opportunity to express their views regarding each matter that is subject to the consultation requirements of this subsection (a).
B) What services will be provided;
C) How the services will be provided; and
D) How the services provided will be evaluated.
3) The consultation required by this subsection (a) shall occur before the school district makes any decision that affects the opportunities of private school children with disabilities to participate in services.
4) The school district shall make the final decisions with respect to the services to be provided to eligible children who are enrolled in private schools.
5) The school district shall maintain a written record of actions taken in compliance with the requirements of this subsection (a).
1) Eligible students in private schools may receive a different amount of services than eligible children in public schools.c) Services may be provided on site at a child's private school, including a religiously affiliated school, to the extent consistent with the provisions of IDEA (20 USC 1413(d)).
2) No individual child must receive a specific service or receive the same amount of service the child would receive in a public school.
3) For any child served pursuant to this Section, the school district shall develop a service plan that identifies the services that the district will provide to the child. The plan shall meet the requirements of Section 226.230 of this Part and shall be developed, reviewed, and revised consistent with Sections 226.200, 226.210, 226.220, and 226.530 of this Part.
Contents:
300.400 Applicability of Sec. Sec. 300.400-300.402.
300.401 Responsibility of State educational agency.
300.402 Implementation by State educational agency.
300.403 Placement of children by parents if FAPE is at issue.300.450 Definition of "private school children with disabilities.''
300.451 Child find for private school children with disabilities.
300.452 Provision of services--basic requirement.
300.453 Expenditures.
300.454 Services determined.
300.455 Services provided.
300.456 Location of services; transportation.
300.457 Complaints.
300.458 Separate classes prohibited.
300.459 Requirement that funds not benefit a private school.
300.460 Use of public school personnel.
300.461 Use of private school personnel.
300.462 Requirements concerning property, equipment, and supplies for
the benefit of private school children with disabilities.
Sections 300.401-300.402 apply only to children
with
disabilities
who are or have been placed in or referred to a private school or
facility by a public agency as a means of providing special education
and related services.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.401 Responsibility of State educational agency.
Each SEA shall ensure that a child with a
disability
who is placed
in or referred to a private school or facility by a public agency--
(a) Is provided special education and related
services--
(1) In conformance with an IEP that meets the
requirements
of
Secs. 300.340-300.350; and
(2) At no cost to the parents;
(b) Is provided an education that meets the
standards
that apply to
education provided by the SEA and LEAs (including the requirements
of
this part); and
(c) Has all of the rights of a child with a
disability
who is served
by a public agency.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.402 Implementation by State educational agency.
In implementing Sec. 300.401, the SEA shall--
(a) Monitor compliance through procedures such as
written reports,
on-site visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to
each private
school and facility to which a public agency has referred or placed
a
child with a disability; and
(c) Provide an opportunity for those private schools
and facilities
to participate in the development and revision of State standards that
apply to them.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by Their Parents in Private
Schools
When FAPE Is at Issue
(i) At the most recent IEP meeting that the parents attended prior(2) If, prior to the parents' removal of the child from the public
to removal of the child from the public school, the parents did not
inform the IEP team that they were rejecting the placement proposed by
the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
section;
(Authority: 20 U.S.C. 1412(a)(10)(C))
Sec. 300.450 Definition of "private school children
with
disabilities.''
As used in this part, private school children
with
disabilities
means children with disabilities enrolled by their parents in private
schools or facilities other than children with disabilities covered
under Secs. 300.400-300.402.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.451 Child find for private school children with disabilities.
(a) Each LEA shall locate, identify, and evaluate
all private school
children with disabilities, including religious-school children
residing
in the jurisdiction of the LEA, in accordance with Secs. 300.125 and
300.220. The activities undertaken to carry out this responsibility
for
private school children with disabilities must be comparable to
activities undertaken for children with disabilities in public schools.
(b) Each LEA shall consult with appropriate
representatives
of
private school children with disabilities on [[Page 55]]
how to carry out the activities described in paragraph (a) of this
section.
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.452 Provision of services--basic requirement.
(a) General. To the extent consistent with their
number and location
in the State, provision must be made for the participation of private
school children with disabilities in the program assisted or carried
out
under Part B of the Act by providing them with special education and
related services in accordance with Secs. 300.453-300.462.
(b) SEA Responsibility--services plan. Each SEA
shall ensure that,
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, a services plan is developed and implemented for each private
school child with a disability who has been designated to receive
special education and related services under this part.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.453 Expenditures.
(a) Formula. To meet the requirement of Sec.
300.452(a),
each LEA
must spend on providing special education and related services to
private school children with disabilities--
(1) For children aged 3 through 21, an amount that
is the same
proportion of the LEA's total subgrant under section 611(g) of the
Act
as the number of private school children with disabilities aged 3
through 21 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 21; and
(2) For children aged 3 through 5, an amount that
is the same
proportion of the LEA's total subgrant under section 619(g) of the
Act
as the number of private school children with disabilities aged 3
through 5 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 5.
(b) Child count. (1) Each LEA shall--
(i) Consult with representatives of private school
children in
deciding how to conduct the annual count of the number of private
school
children with disabilities; and
(ii) Ensure that the count is conducted on December
1 or the last
Friday of October of each year.
(2) The child count must be used to determine the
amount that the
LEA must spend on providing special education and related services
to
private school children with disabilities in the next subsequent fiscal
year.
(c) Expenditures for child find may not be
considered.
Expenditures
for child find activities described in Sec. 300.451 may not be
considered in determining whether the LEA has met the requirements
of
paragraph (a) of this section.
(d) Additional services permissible. State and local
educational
agencies are not prohibited from providing services to private school
children with disabilities in excess of those required by this part,
consistent with State law or local policy.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.454 Services determined.
(a) No individual right to special education and
related services.
(1) No private school child with a disability has an individual right
to
receive some or all of the special education and related services that
the child would receive if enrolled in a public school.
(2) Decisions about the services that will be
provided
to private
school children with disabilities under Secs. 300.452-300.462, must
be
made in accordance with paragraphs (b), and (c) of this section.
(b) Consultation with representatives of private
school children
with disabilities. (1) General. Each LEA shall consult, in a timely
and
meaningful way, with appropriate representatives of private school
children with disabilities in light of the funding under Sec. 300.453,
the number of private school children with disabilities, the needs
of
private school children with disabilities, and their location to
decide--
(i) Which children will receive services under Sec.
300.452;
(ii) What services will be provided;
(iii) How and where the services will be provided;
and
(iv) How the services provided will be evaluated.
(2) Genuine opportunity. Each LEA shall give
appropriate
representatives [[Page 56]] of private school children with
disabilities
a genuine opportunity to
express their views regarding each matter that is subject to the
consultation requirements in this section.
(3) Timing. The consultation required by paragraph
(b)(1) of this
section must occur before the LEA makes any decision that affects the
opportunities of private school children with disabilities to
participate in services under Secs. 300.452-300.462.
(4) Decisions. The LEA shall make the final
decisions
with respect
to the services to be provided to eligible private school children.
(c) Services plan for each child served under Secs.
300.450-300.462.
If a child with a disability is enrolled in a religious or other
private
school and will receive special education or related services from
an
LEA, the LEA shall--
(1) Initiate and conduct meetings to develop,
review,
and revise a
services plan for the child, in accordance with Sec. 300.455(b); and
(2) Ensure that a representative of the religious
or other private
school attends each meeting. If the representative cannot attend, the
LEA shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.
(Authority: 1412(a)(10)(A))
Sec. 300.455 Services provided.
(a) General. (1) The services provided to private
school children
with disabilities must be provided by personnel meeting the same
standards as personnel providing services in the public schools.
(2) Private school children with disabilities may
receive a
different amount of services than children with disabilities in public
schools.
(3) No private school child with a disability is
entitled to any
service or to any amount of a service the child would receive if
enrolled in a public school.
(b) Services provided in accordance with a services
plan. (1) Each
private school child with a disability who has been designated to
receive services under Sec. 300.452 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 process described in Secs. 300.453-300.454,
it
will make available to private school children with disabilities.
(2) The services plan must, to the extent
appropriate--
(i) Meet the requirements of Sec. 300.347, with
respect to the
services provided; and
(ii) Be developed, reviewed, and revised consistent
with
Secs. 300.342-300.346.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.456 Location of services; transportation.
(a) On-site. Services provided to 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.
(b) Transportation. (1) General. (i) If necessary
for the child to
benefit from or participate in the services provided under this part,
a
private school child with a disability must be provided
transportation--
(A) From the child's school or the child's home
to a site other than
the private school; and
(B) From the service site to the private school,
or to the child's
home, depending on the timing of the services.
(ii) LEAs are not required to provide transportation
from the
child's home to the private school.
(2) Cost of transportation. The cost of the
transportation
described
in paragraph (b)(1)(i) of this section may be included in calculating
whether the LEA has met the requirement of Sec. 300.453.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.457 Complaints.
(a) Due process inapplicable. The procedures in
Secs.
300.504-
300.515 do not apply to complaints that an LEA has failed to meet the
requirements of Secs. 300.452-300.462, including the provision of
services indicated on the child's services plan.
(b) Due process applicable. The procedures in Secs.
300.504-300.515
do apply to complaints that an LEA has failed to [[Page 57]]
meet the requirements of Sec. 300.451, including the requirements of
Secs. 300.530-300.543.
(c) State complaints. Complaints that an SEA or
LEA has failed to
meet the requirements of Secs. 300.451-300.462 may be filed under the
procedures in Secs. 300.660-300.662.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.458 Separate classes prohibited.
An LEA may not use funds available under section
611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the students if--
(a) The classes are at the same site; and
(b) The classes include students enrolled in public
schools and
students enrolled in private schools.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.459 Requirement that funds not benefit a private school.
(a) An LEA may not use funds provided under
section
611 or 619 of
the Act to finance the existing level of instruction in a private
school
or to otherwise benefit the private school.
(b) The LEA shall use funds provided under Part
B of the Act to meet
the special education and related services needs of students enrolled
in
private schools, but not for--
(1) The needs of a private school; or
(2) The general needs of the students enrolled in
the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.460 Use of public school personnel.
An LEA may use funds available under sections 611
and 619 of the Act
to make public school personnel available in other than public
facilities--
(a) To the extent necessary to provide services
under Secs. 300.450-
300.462 for private school children with disabilities; and
(b) If those services are not normally provided
by the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.461 Use of private school personnel.
An LEA may use funds available under section 611
or 619 of the Act
to pay for the services of an employee of a private school to provide
services under Secs. 300.450-300.462 if--
(a) The employee performs the services outside of
his or her regular
hours of duty; and
(b) The employee performs the services under public
supervision and
control.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.462 Requirements concerning property, equipment, and
supplies
for the benefit
of private school children with disabilities.
(a) A public agency must keep title to and
exercise
continuing
administrative control of all property, equipment, and supplies that
the
public agency acquires with funds under section 611 or 619 of the Act
for the benefit of private school children with disabilities.
(b) The public agency may place equipment and
supplies
in a private
school for the period of time needed for the program.
(c) The public agency shall ensure that the
equipment
and supplies
placed in a private school--
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without
remodeling the
private school facility.
(d) The public agency shall remove equipment and
supplies from a
private school if--
(1) The equipment and supplies are no longer needed
for Part B
purposes; or
(2) Removal is necessary to avoid unauthorized use
of the equipment
and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used
for repairs, minor
remodeling, or construction of private school facilities.
(Authority: 20 U.S.C. 1412(a)(10)(A))
top
Case #002596 – Marie Bracki, Hearing Officer
Independent Education Evaluation, Unilaterally Placed in Private School
(Home Schooled)
ISBE synopsis: "The child’s guardian filed a request for due process claiming that the District failed to provide a free appropriate public education, failed to consider an independent evaluation, and failed to provide an IEP and special education services. The District requested that the hearing officer dismiss the matter citing that the student was home-schooled and, therefore, not entitled to the same safeguards under IDEA. Further the District stated the hearing officer had no jurisdiction to reconsider a previous Order issued in 2001, and that the guardian had not cooperated with the District to allow it to provide FAPE. The case was dismissed.Did the administrative proceeding consider 23 Ill. Admin Code 223.340(b)? The officer should resolved "Disagreements between a parent and a school district regarding the district’s provision of an appropriate program for a particular child shall be resolved by means of the due process."
The District was represented by an attorney. The guardian was assisted by an advocate."
Case #002767 – Carolyn Ann Smaron, Hearing Officer
Motion to Dismiss – Student Parentally Placed in Private SchoolCase #002829 – Stephen B. Rubin, Hearing Officer
ISBE Synopsis: The hearing officer dismissed the case on the grounds that 23 IAC 226.350(c) does not apply to disputes between a local school District and parents of a student unilaterally enrolled in a private school.
Both parties were represented by legal counsel.
Child Find, Unilateral Placement in Private School
ISBE Synopsis: The hearing was requested by the parent seeking reimbursement for tutoring and testing in the amount of $3,085 and tutoring services provided in a parochial school rather than a district school. Since the child was unilaterally placed in a private school for non-educational reasons, the issues pertaining to the delivery of services on the IEP were not subject to a due process hearing. The only issue the hearing officer considered was whether the District violated its child find obligations with respect to this child.
The hearing officer found that the District did not violate its child find obligations with respect to this student. The parents’ request for relief was denied.
The District was represented by legal counsel; the parent was not represented.
"...we hold that under the particular circumstancesOne judge in New York has ruled that disabled children should by forced to fail before they get an appropriate program. Here is a great
of this case, where a trained service provider was not available and the
parent stepped in to learn and perform the duties of a trained service
provider, reimbursing the parent for her time spent in providing
therapy is "appropriate" relief.
Bucks County Department of Mental Health/Mental Retardation, Appellant v.
Commonwealth of Pennsylvania, Department of Public Welfare; Barbara Demora
No: 02-3919; 379 F.3d 61;2004 U.S. App. LEXIS 17231; August 18, 2004.
http://caselaw.findlaw.com/data2/circs/3rd/023919p.pdf
DeMora case via Lexisone
a) Disagreements between a parent and a school district regarding the district’s provision of an appropriate program for a particular child shall be resolved by means of the due process afforded pursuant to Subpart G of this Part.
b) No child who is placed into a nonpublic facility by his or her parent(s) without the consent or referral of the local school district has an individual right to receive the special education and related services that the child would receive if enrolled in the district. Instead, a district’s services to such children are subject to the provisions of Section 226.350 of this Part.
Home school legal references | Compulsory Education law | Juvenile Court Act | Levisen case |
Homeschool and Special Education | Attorney General Summary | Enforcement of compulsory education | Scoma case |