July 2011
Number 27

Recent federal guidelines clarify public school districts’ responsibilities to students with disabilities whose parents place them in private schools. A recent publication by the Office of Special Education and Rehabilitative Services (OSERS) addresses districts’ child find and service requirements in light of the current Individuals with Disabilities Education Act (IDEA). Among other things, the Question and Answer (“Q&A”) publication discusses the possibility of two districts evaluating the same child, out-ofstate children with disabilities, and preschoolers with disabilities. The Q&A expresses the current assessment of the federal Department of Education’s (“Department”) topic. Below are key aspects of the OSERS Q&A:

Child Find. The district where a private school is located must conduct child find for parentally-placed private school children. This is a change from the prior versions of IDEA, in which the district where the child resided conducted child find for parentallyplaced private school children. Now, both the district of residence and the district where the private school is located are responsible for child find.

Evaluations from Different Districts. The Department acknowledges that parents may request two different districts to evaluate their parentally-placed private school child. This could arise when a child attends a private school outside of the district of residence. In California, the district where the child’s parents reside must make a free appropriate public education (FAPE) available, and this district could be different from the district where the child’s private school is located. Parents, therefore, could simultaneously request two different districts to evaluate their child for different purposes. Therefore, one district may not know that a parent has also requested an evaluation from another district. While it is permissible for parents to request evaluations from two different districts, the Department does not encourage this practice. It is recommended that districts communicate with each other and obtain parental permission to release information between the districts so that they can coordinate the assessment process.

Equitable Services and FAPE. The district where a private school is located provides equitable services for parentally-placed private school children with disabilities. Districts must spend a proportionate amount of their federal special education funds on special education services for parentally-placed private school students with disabilities. Equitable participation is provided to these students if the services are not usually provided by the private school. But, such special education services are not required to rise to the level of those provided under FAPE, and students do not have an individual right to equitable services.

For children who also reside in the district where the private school is located, the district must make FAPE available to them, unless parents convey their clear intention of continuing to enroll the child in private school. For parentally placed private school children with disabilities residing in a different district, the district where the child resides is responsible for making FAPE available. When a district where the private school is located determines through the child find process that the child needs special education and related services, but the parents clearly state their intention to keep the child enrolled in the private school, the district of residence does not need to make FAPE available to the child. However, unless parents unequivocally intend to continue enrolling their child in private school, the district’s safest option is to offer the child FAPE by developing an IEP and offering placement.

Updating the Service Plan. IDEA and its implementing regulations do not state how frequently an equitable service plan must be updated. A service plan must be developed, reviewed and revised in accordance with the individualized education program (IEP) requirements. A child’s IEP must be reviewed periodically and at least annually, and OSERS recommends the same time requirements for reviewing a service plan.

Transportation for Services. The district where the private school is located must provide transportation to a parentally placed private school child with disabilities to the location services are provided, if this is necessary for the child to benefit from or participate in the services. This includes transportation from the child’s school or home to the service site other than the private school, and transportation from the service site to the private school or child’s home, depending on when the services occur.

Out-of-State Children with Disabilities. The district where the private school is located conducts child find for all parentally placed private school children, including those children attending who reside out of state. The district where the private school is located determines and pays for equitable participation services provided to out-ofstate parentally placed private school children with disabilities.

Pre-school Children. Children aged three through five enrolled in a private school that qualifies as an elementary school are considered parentally placed private school children. The district where the private school is located provides equitable services. The state’s obligation to make FAPE available continues, however, and since many districts do not offer public preschool programs, districts often offer FAPE to eligible preschool children with disabilities in private schools or facilities. In this case, there is no mandate that the private school be an “elementary school.”

Children in For-Profit Private Schools. Children attending for-profit schools do not receive equitable services. However, the child find obligation applies to children attending private schools, including for-profit private schools.

 If you have questions regarding the OSERS publication or IDEA compliance or implementation for your school district or agency, please do not hesitate to contact one of our eight offices located statewide or consult our website.

Daniel Osher
Shareholder and Special Education Practice Group Co-Chair
Monterey Office

Aria Link
Law Clerk
Monterey Office

© 2011 Lozano Smith


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