San Joaquin County SELPA

CHAPTER 15

PARENTALLY–PLACED PRIVATE SCHOOL STUDENTS with

DISABILITIES

Policy:

The child find process in North Santa Cruz County SELPA shall be designed to ensure equitable

participation of parentally-placed private school children with disabilities and an accurate count

of such children. Compliance with this policy and its procedures is intended to ensure evidence

of compliance with all federal and State laws and regulations concerning children so identified.

Definitions:

District of Residence, ("DOR"): As used in this policy, the district of residence refers to the

school district within which boundaries the child with a disability resides.

District of Location (“DOL”): As used in this part, the Local Educational Agency, LEA, refers to

the school district where the private school or facility is located.

Private School Children with Disabilities: As used in this policy, “private school children with

disabilities” means a child with disabilities enrolled by their parents in private elementary or

secondary school or facility, other than students with disabilities placed by the school district in

a nonpublic, nonsectarian school pursuant to EC 56365. (EC 56170).

Private School or Facility: As used in this policy, “private school or facility” means: (1) private

full-time day school pursuant to California Education Code section 48222 (including religious

schools); (2) private tutor pursuant to California Education Code section 48224; and/or (3) any

other California Department of Education ("CDE") identified educational institution, program,

arrangement, or facility not sponsored, maintained, or managed by the school district and for

which the school district does not collect average daily attendance funds; (4) CDE authorized

nonprofit private school affidavit.

Representatives of Private School Students: As used in this policy, “representatives of private

school students” may include private school administrators, teachers, students and parents.

Procedures:

The following procedures shall be followed by the school districts in the North Santa Cruz

County Special Education Local Plan Area (“SELPA”) to ensure that the District:

Locates, identifies, and evaluates all children ages five (5) to twenty-one (21) with disabilities

voluntarily enrolled by their parents in private schools including religious schools who may be

eligible for special education services; and offers a free and appropriate public education

(FAPE) to all children ages five (5) to twenty-one (21) with disabilities, enrolled voluntarily by

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their parents in private schools including religious schools, who are determined to be eligible

for special education services who are enrolled in public schools.

Consultation

The DOL shall consult with private school representatives and representatives of parents of

parentally-placed private school children with disabilities during the design and development

of special education and related services for the children. Such consultation shall include

pursuant to PL 108-455 Section 612 (10) (A) (ii)(V)(iii)(I-V) and Education Code 56172 (b) & (c):

 The child find process and how parentally-placed private school children

suspected of having a disability can participate equitably, including how

parents, teachers, and private school officials will be informed of the process;

 The determination of the proportionate amount of Federal funds available to

serve parentally-placed private school children with disabilities under this

subparagraph, including the determination of how the amount was

calculated;

 The consultation process among the DOL, private school officials, and

representatives of parents of parentally-placed private school children with

disabilities, including how such process will operate throughout the school

year to ensure that parentally-placed private school children with disabilities

identified through the child find process can meaningfully participate in

special education and related services;

 However, where, and by whom special education and related services will be

provided for parentally-placed private school children with disabilities,

including a discussion of types of services, including direct services and

alternate service delivery mechanisms, how such services will be apportioned

if funds are insufficient to serve all children, and how and when these

decisions will be made; and

 However, if the DOL disagrees with the views of the private school officials

on the provision of services or the types of services, whether provided directly

or through a contract, the DOL shall provide to the private school officials a

written explanation of the reasons why the DOL chose not to provide services

directly or through a contract.

When timely and meaningful consultation as described above has occurred, the DOL shall

obtain a written affirmation signed by the representatives of participating private schools, and if

such representatives do not provide such affirmation within a reasonable period of time, the

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DOL shall forward the documentation of the consultation process to the CDE.

A private school official has the right to submit a complaint to the California Department of

Education (CDE), if:

 The DOL's consultation was not meaningful and timely, or

 The DOL did not give due consideration to the views of the private school

official.

If a complaint is filed:

 The private school official must provide the basis of the complaint of

noncompliance, and

 The DOL must forward the appropriate documentation to the CDE.

If the private school official is dissatisfied with the decision of the CDE, he/she may appeal the

decision to the U.S. Department of Education.

II. Child Find

A. The DOL shall undertake the following child-find activities with regard to private

school children ages five (5) to twenty-one (21):

 Consult with representatives of private school children with disabilities

(including private school administrators, teachers, parents, and students)

regarding the child-find process, including, but not limited to, criteria for

special education eligibility and special education referral procedures under

federal and state laws and regulations.

 Distribute materials to representatives of private school children with

disabilities (including private school administrators, teachers, parents and

students) regarding issues, including but not limited to, criteria for special

education eligibility and special education referral procedures under federal

and state laws and regulations.

B. The proportionate share of Federal funds described in section below shall not be

used for child-find activities.

C. The DOL shall ensure child-find activities undertaken for private school students are

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comparable to activities undertaken for children with disabilities ages five (5) to

twenty-one (21) with disabilities in public schools. Child-find activities shall include

consultation with representatives (staff and parents) of private school children five

(5) to twenty-one (21) with disabilities regarding how to carry out child-find

activities.

III. Special Education Referral

 Students must be referred for special education instruction and services only

after the resources of the general education program have been considered

and, where appropriate, utilized.

 If after considering and, where appropriate, utilizing general education

resources, representatives of private school children with disabilities (including

private school administrators, teachers, and parents) determine that a private

school child may be eligible for special education services, a referral shall be

directed to the Director of Special Education of the DOL.

IV. Initial Individual Education Program (IEP) Team Meeting

A. Upon identifying and locating a child suspected of being a child with a disability, the

DOL shall conduct an appropriate and timely initial assessment of the child's needs,

if a current assessment has not been performed by the District of Residence.

B. The DOL shall make the eligibility decision in accordance with applicable state and

federal laws and regulations.

C. If the parents of a private school child with a disability are clearly not interested in

enrolling their child in public school, and if the child is eligible for special education

and related services as a child with a disability, the DOL shall develop an Individual

Service Plan ("ISP") in accordance with this policy and federal and state laws and

regulations.

In order to ensure that the parents' intention are clear, the District of Residence shall

request that the parents sign the following statement on a form entitled Certification

of Parent's Decision Not to Enroll in Public School: “Parents of _________ hereby certify

that we are not interested in enrolling our child, _______, in the District. We are not

interested in the development of an IEP for our child, the District's offer of a free

appropriate public education, and are only interested in an ISP from the DOL, the

school district where the private school in which we are unilaterally placing our

child is located. We have received the North Santa Cruz County SELPA Notice of

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Parents' Rights, and we understand the notice.”

E. If the parents of a private school child with a disability are interested in enrolling

their child in public school, or are unsure of their intentions, the DOR IEP team shall

develop an IEP for the child.

F. If the parents of a private school child with a disability agree with and consent to the

IEP developed by the DOR IEP team, the IEP shall be implemented by the DOR

without undue delay following the IEP team meeting.

G. If the parents of a private school child with a disability agree with, but decline the

IEP developed by the IEP team, the IEP team shall:

 Ask the parents to indicate on the parent consent form that they wish to decline

the initiation of special education services. Check the appropriate box on the

IEP “Student enrolled in private school by their parents. Refer to Individual

Service Plan if appropriate.”

H. The DOR shall not be required to pay for the cost of education, including special

education and related services of a student with a disability enrolled at a private

school or facility if the DOR made a free appropriate public education available to

the student, and the parent of the child elected to place the child in the private school

or facility. (EC 56174)

I. A private school student with a disability may receive a different amount of services

than a student with disabilities enrolled in a public school receives pursuant to

paragraph (2) of subsection (a) of Section 300.455 of Title 34 of the Code of Federal

Regulations. No private school student with disabilities is entitled to any amount of

services the student would receive if enrolled in a public school pursuant to

paragraph (3) of subsection (a) of Section 300.455 of Title 34 of the Code of Federal

Regulations.

V. Child Count

A. The DOL shall determine the manner in which to conduct the annual count of

private school children with disabilities.

 The child count shall be conducted for attendance on December 1 of the prior

year. The child count shall be conducted by mail and follow-up phone or in-

person contact as needed.

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 The child count shall be used to determine the amount that the DOL must

spend on providing special education and related services to private school

children with disabilities in the fiscal year following the date on which the

child count is conducted.

VI. Individual Services Plan (ISP)

A. No parentally-placed private school child with a disability has an individual right to

receive some or all of the special education services that the child would receive if

enrolled in public school.

B. Pursuant to federal and State law and regulations, the DOL shall spend a

proportionate share of federal funds to provide special education and related

services to private school children with disabilities ages three (3) to twenty-one (21)

eligible for special education services. Decisions about the services that shall be

provided to private school children with disabilities are made after consulting, in a

timely and meaningful way, with representatives of private school children with

disabilities

C. Each private school child with a disability who has been designated to receive series

under this policy shall have an ISP that describes special education and related

services that the DOL shall provide to the child as determined by the DOL under this

policy. The DOL shall ensure that a representative of the private school attends each

meeting involving the individual child’s ISP. If the private school representative is

unable to attend, the DOL shall use other methods to ensure participation by the

private school, including individual or conference telephone calls.

D. The services offered in this policy shall be reviewed by the DOL at least annually by

means of a survey initiated by each DOL and/or consultation with representatives of

private school children with disabilities ages three (3) to twenty-one (21).

E. The services provided pursuant to the policy may be provided at a private school,

including a religious school, to the extent consistent with law. The location of the

services shall be set out in the student’s ISP. Service providers shall be hired and

supervised by DOL. The DOL shall also control all property, equipment, and

supplies allocated to benefit private school students with disabilities. However, the

DOL shall not use its proportionate share of federal funding to finance the existing

level of instruction in a private school or to otherwise benefit the private school.

VII. IEP Meetings/Assessments after the Initial IEP Team Meeting

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All children with disabilities eligible for special education who reside in the District of

Residence are entitled to receive a FAPE from the District of Residence if they are enrolled in

public school. One year after an eligible private school child’s initial IEP team meeting and

annually thereafter, the District of Residence shall notify the child’s parents in writing that the

District of Residence:

 Continues to offer a FAPE in accordance with federal and state laws and

regulations;

 Is ready, willing, and able to schedule an IEP team meeting for their child in

order to offer the child a FAPE, subject to assessment, if appropriate, if the

parents express an interest in enrolling their child in public school.

Unless the parent is interested in enrolling in the DOR and wants to pursue FAPE, the parents

shall be requested to send the document back to the District of Residence and indicate their

agreement with one of the following statements:

A. I understand that the District of Residence continues to offer my child a free

appropriate public education (FAPE) (including appropriate special education and

related services) if he/she is enrolled in public school. I continue to unilaterally place

my child in a private school; and I would like my child to continue to receive

services pursuant to his/her ISP. I am not interested in enrolling my child in public

school. (In this case, the District of Residence will forward within 3 business days a

copy of this document to the DOL.)

B. I am interested in enrolling my child in public school. I would like to schedule an

IEP team meeting for my child. Please call me at: [parent inserts phone number] in

order to schedule the IEP meeting.

Notwithstanding paragraph VII, A above, the District of Residence shall convene an IEP

team meeting at least every three years in order to determine continuing eligibility for

special education.

VIII. Private Preschool Students with Disabilities (Age 3.0 - 5.0)

A. If the IEP team determines that a preschool child with a disability is eligible for

special education services and develops an IEP offering only related services (i.e.,

placement is not a component of FAPE), the eligible preschool student shall be

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considered a public school student. The District of Residence shall provide the

eligible preschool child with a disability with a FAPE in accordance with federal and

state laws and regulations.

B. If An IEP team determines that a preschool child with a disability is eligible for

special education services and develops an IEP offering placement and related

services; and

The parent agrees with the IEP developed by the IEP team, but declines public

preschool placement in order to unilaterally enroll his/her child in a private

preschool, then the eligible preschool child with a disability shall be considered a

unilaterally placed private school student. In such case, the DOL shall offer an ISP

for the student.

IX. Dispute Resolution

A. When FAPE is not at issue, special education due process procedures are not

available to parents for resolving disagreements about the services provided to

private school children unilaterally placed by their parents.

B. No District of Location or District of Residence is required to pay for the cost of

educating a child with a disability at a private school (including special education

and related services) if: (1) the District of Residence made a FAPE available to the

child, and (2) the parents voluntarily elected to place their child in a private school.

C. Disputes regarding whether the District of Residence made a FAPE available to the

child (as well as the initial location, identification, and assessment of the parentally

placed private school child with disabilities by the District of Location and/or the

District of Residence, as appropriate) may be resolved pursuant to local policies and

procedures and/or by filing a request for a due process hearing with the Office of

Administrative Hearings.

D. Disputes regarding the DOL's policy regarding Parentally-Placed Private School

Students with Disabilities may be resolved pursuant to local policies and procedures,

and/or by filing a complaint with the California Department of Education pursuant

to Title 5 of the California Code of Regulations, section 4600 et seq.

Legal References:

UNITED STATES CODE, TITLE 20 Section 1412(a)(10) (A)

Revised and Adopted January 24, 2013

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DETERMINING PROPORTIONATE SHARE OF FEDERAL FUNDS

The proportionate share of federal funds that must be expended by each LEA is calculated annually

based upon the percentage of all children with disabilities within the district, ages 3 through 21

years, enrolled in elementary and secondary schools. These funds are restricted to services provided

to private schools in supporting students who have ISPs. Funds not expended in a fiscal year can be

carried over into the next fiscal year. (20 U.S.C. § 1412(a)(10)(A))

The chart below details how the proportionate share is calculated.

Line

Eligible Children

Number of eligible children with disabilities in public school in the LEA (from

previous year’s CASEMIS (December student count)

Number of parentally-placed eligible children with disabilities in private elementary

and secondary schools located within the LEA (CASEMIS Plan Type 20 or 70; ages 6-

21 from previous year’s CASEMIS December student count)

Total number of eligible children (line 1 plus line 2)

Federal Local Assistance funds (611 Grant) allocated to LEA

Calculation of Proportionate Share

Average allocation per eligible child (line 4 divided by line 3)

Amount to be expended on parentally-placed private school children (line 5 multiplied

by line 2)

Tracking Expenditures

Each LEA is responsible for tracking its expenditures for serving students enrolled in private

schools. These expenditure reports are collected at the SELPA level and must be submitted to the

state as part of the annual expenditure report for federal IDEA funds.

The following expenses shall be used in calculating the proportionate share of federal funds for

students with disabilities in private schools:

· Direct staff costs, i.e., salary and benefits, for those staff providing consultation and

direct services for students with disabilities in private schools.

· Mileage reimbursement for staff to and from the private school for provision of services.

· Cost of materials, e.g., consumables, copying

· Costs of staff development programs provided specifically for private school personnel.

· Transportation costs, i.e., bus expenses or mileage reimbursement to parent to transport

child to receive the special education or related services.

The SELPA Office will calculate the SELPA-wide proportionate share and distribute to the member

districts on an annual basis.

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Questions and Answers

on Serving Children with Disabilities

Placed by Their Parents in Private Schools

Revised April 2011

Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published

in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since

publication of the regulations, the Office of Special Education and Rehabilitative Services

(OSERS) in the U.S. Department of Education (Department) has received requests for

clarification of some of these regulations. This is one of a series of question and answer (Q&A)

documents prepared by OSERS to address some of the most important issues raised by requests

for clarification on a variety of high-interest topics. Each Q&A document will be updated to add

new questions and answers as important issues arise or to amend existing questions and answers

as needed.

OSERS issues this Q&A document to provide State educational agencies (SEAs), local

educational agencies (LEAs), parents, advocacy organizations, and other interested parties with

information regarding the requirements for serving children with disabilities placed by their

parents in private schools. This Q&A document represents the Department’s current thinking on

this topic. It does not create or confer any rights for or on any person. This guidance does not

impose any requirements beyond those required under applicable law and regulations.

The IDEA and its implementing regulations contain a number of significant changes for

parentally placed private school children with disabilities. Section 612(a)(10)(A) of the IDEA

and 34 CFR §§300.130 through 300.144 now require that the LEA, after timely and meaningful

consultation with private school representatives, conduct a thorough and complete child find

process to determine the number of parentally placed children with disabilities attending private

schools located within the LEA regardless of where those students live. These requirements

make clear that the obligation to spend a proportionate amount of IDEA Part B funds to provide

services to children with disabilities enrolled by their parents in private schools now refers to

children enrolled by their parents in private elementary schools and secondary schools “in the

school district served by a local educational agency.” Other key changes relate to the

consultation process, calculation of the proportionate share, and standards applicable to

personnel providing equitable services.

This Q&A document supersedes the Department’s guidance, entitled Questions and Answers on

Serving Children with Disabilities Placed by Their Parents in Private Schools issued in March

2006 and January 2007 and includes additional topics that have arisen as the field has

implemented the regulations. Some of the new questions reflect recent policy letters that have

been issued, while others address common questions that OSEP receives. New topics include:

• Location of Services and Transportation—addressing how an LEA determines where

equitable services are provided and whether transportation is required.

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Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

PAGE 2

• Property, Equipment, and Supplies—addressing whether Part B funds for equitable

services may be used to place equipment and supplies in a private school or be used for

repairs, minor remodeling, or construction of private school facilities.

• Out-of-State Children with Disabilities—addressing the responsibility for determining

and paying for services provided to out-of-State parentally placed private school children

with disabilities.

• Home-Schooled Children with Disabilities—addressing child find and services for

children with disabilities who are home-schooled.

• Children in For-Profit Private Schools—addressing whether children enrolled in a for profit

private school are counted in determining the proportionate share and whether they are

eligible to receive equitable services.

In addition to these new topics, questions have been added to address the consultation process,

response to intervention (RTI), the process for developing a services plan, the difference between

a services plan and an individualized education program (IEP), child find, and child count.

Generally, the questions, and corresponding answers, presented in this Q&A document required

interpretation of the IDEA and its implementing regulations and the answers are not simply a

restatement of the statutory or regulatory requirements. The responses presented in this

document generally are informal guidance representing the interpretation of the Department of

the applicable statutory or regulatory requirements in the context of the specific facts presented

and are not legally binding. The Q&As in this document are not intended to be a replacement for

careful study of the IDEA and its implementing regulations. The IDEA, its implementing

regulations, and other important documents related to the IDEA and the regulations are found at

http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C.

If you are interested in commenting on this guidance, please e-mail your comments to

[email protected] and include Private Schools in the subject of your e-mail or

write us at the following address: Ruth Ryder, U.S. Department of Education, Potomac Center

Plaza, 550 12th Street, S.W., room 4108, Washington, DC 20202.

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Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

Table of Contents

A. Consultation with Private School Representatives and Representatives of Parents of

Parentally Placed Private School Children With Disabilities ……………….... Page 8

A-1. What is consultation?

A-2. What must the consultation process include?

A-3. What records on consultation must an LEA maintain?

A-4. How can the consultation process be carried out effectively? Are there any consultation

models available?

B. Child Find and Individual Evaluations ……………………………………….. Page 11

B-1. Which LEA is responsible for conducting child find for parentally placed private school

children?

B-2. What are the LEA’s responsibilities for identifying children with disabilities placed by

their parents in private schools?

B-3. May an LEA require a private school to implement a response to intervention (RTI)

process before evaluating parentally placed private school children?

B-4. Is it possible for a parent to request evaluations from the LEA where the private school is

located as well as the district where the child resides?

B-5. Does the LEA where the private school is located have an obligation to make an offer of

a free appropriate public education (FAPE)?

B-6. Why is it important to identify the number of parentally placed private school children

with disabilities located in the LEA where the private school is located?

B-7. What specific child count information must the LEA maintain and report to the SEA?

B-8. What are the LEA’s responsibilities for reevaluations of parentally placed children?

B-9. What is the difference between child find under 34 CFR §§300.111 and 300.131?

B-10. May amounts expended for child find, including individual evaluations, be deducted from

the required amount of Federal funds to be expended on services for parentally placed

private school children with disabilities?

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B-11. In conducting the individual evaluations of children suspected of having disabilities who

Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

are enrolled in private schools by their parents, may an LEA exclude children suspected

of having certain disabilities, such as those with specific learning disabilities?

B-12. If the LEA where the private elementary or secondary school is located conducts an

individual evaluation on a child and the parents disagree with the evaluation and wish to have

an independent educational evaluation (IEE) conducted, to which LEA must the parents

bring their request--the LEA where the private school is located, or the LEA where the child

resides?

C. Equitable Services ……………………………………………………………..... Page 17

C-1. What is the definition of the term “equitable services”?

C-2. Who provides equitable services to parentally placed private school children with

disabilities?

D. Provision of Services …………………………………………………………..... Page 19

D-1. What is the process for making decisions with respect to the services to be provided to

eligible parentally placed private school children with disabilities?

D-2. Are there any particular kinds of services or specified amounts of services that must be

provided to parentally placed private school children with disabilities under Part B of the

IDEA?

D-3. May an LEA provide services to parentally placed private school children that are in

addition to the services provided pursuant to the Federal equitable participation

requirements and that are covered by the Federal proportionate share?

D-4. Must the proportionate amount of Part B funds be used only for direct services to

parentally placed private school children with disabilities? Is it permissible to use funds

for this population on other services, such as consultative services, materials, equipment,

or training?

E. Services Plans ………………………………………………………………..….. Page 22

E-1. How often must a services plan be updated?

E-2. Does the parent of a parentally placed private school child have the opportunity to

participate in the development of a services plan?

E-3. What is the difference between an individualized education program (IEP) and a services

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plan?

Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

E-4. What is the process for developing a services plan for a parentally placed private school

child with a disability?

F. Location of Services and Transportation ……………………………………... Page 24

F-1. Section 300.139(a) of the Part B regulations states that services to parentally placed

private school children with disabilities may be provided on the premises of private,

including religious, schools to the extent consistent with law. How is “the extent

consistent with law” determined?

F-2. How does an LEA determine the location where services will be provided to parentally

placed private school children with disabilities?

F-3. Must an LEA provide transportation in order for a child to benefit from or participate in

the services provided under the private school provisions?

G. Highly Qualified Teachers (HQTs) in Private Schools ……………………… Page 26

G-1. Do the HQT provisions in IDEA apply to private school teachers?

G-2. If an LEA sends a special education teacher (employed by the LEA) to a private school to

provide special education and related services to a child, must that teacher meet the HQT

requirements in IDEA?

G-3. May States exceed the IDEA’s requirements and require teachers in private schools to

hold certain credentials or certifications?

H. Expenditures ……………………………………………………………………. Page 27

H-1. Is the proportionate share that an LEA must expend to provide equitable services to

children with disabilities placed by their parents in private schools different from the

share an LEA would have been required to spend prior to the 2004 IDEA

reauthorization?

H-2. Which children must an LEA count in order to calculate the proportionate share?

H-3. May an LEA expend more than the proportionate share of Part B funds on children with

disabilities placed by their parents in private schools?

H-4. If an LEA does not expend the entire proportionate share of Part B funds on children with

disabilities placed by their parents in a private school that closes, what must the LEA do

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with those unexpended funds?

H-5: If an LEA does not expend the entire proportionate share of Part B funds on children with

Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

disabilities placed by their parents in private schools by the end of the carry-over period,

may the LEA return the unexpended funds to the SEA to be spent by the SEA or

reallocated to another LEA?

H-6. How can the public find out the amount an LEA must expend to meet its proportionate

share of Part B funds?

H-7. Will the Federal and State allocation of Part B funds have to be adjusted to include

parentally placed private school children with disabilities receiving equitable services?

H-8. How are the “Maintenance of Effort” requirements affected when equitable services are

no longer provided with State and local funds to children with disabilities placed by their

parents in private schools? How are the “Maintenance of Effort” requirements affected

for an LEA that only used State and local funds in previous years to provide equitable

participation to children with disabilities placed by their parents in a private school?

H-9. May an LEA include administrative costs to meet the requirement to spend a

proportionate share of Part B funds on children with disabilities placed by their parents in

private schools?

H-10. May an LEA use Part B funds that are required to be expended on equitable services to

make payments directly to a private school?

H-11. Who is required to monitor an LEA’s expenditures of Part B funds to meet the

requirements for equitable services?

H-12. Must children whose parents decline special education and related services be included in

a school district’s proportionate share calculation?

I. Property, Equipment, and Supplies ………………………………………….... Page 34

I-1. May a public agency place equipment and supplies for equitable services in a private

school?

I-2. May Part B funds for equitable services be used for repairs, minor remodeling, or

construction of private school facilities?

J. Out-of-State Children with Disabilities ……………………………………..… Page 35

J-1. Must the LEA where the private elementary schools and secondary schools are located

conduct child find activities for parentally placed private school children who reside

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outside the state?

J-2. Who is responsible for determining and paying for services provided to out-of-State

parentally placed private school children with disabilities?

Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

J-3. May an LEA require another LEA to pay for the services of a parentally placed private

school child with a disability from another State?

J-4. When making a determination regarding the services that an LEA will provide to children

with disabilities placed by their parents in private schools, could an LEA decide to only

provide services to students from their LEA or their State?

K. Home-Schooled Children with Disabilities ……………………………………. Page 37

K-1. Which LEA is responsible for conducting child find for children who are homeschooled?

K-2. Are home-schooled children considered parentally placed private school children?

K-3. If a home-schooled child enrolled in the public school for the purpose of taking some

academic courses was identified as having a disability, would the child be treated as a

parentally placed private school child or treated as a public school child?

L. Due Process …………………………………………………………………….... Page 38

L-1. Under what circumstances may a parent file a due process complaint under the private

school provisions?

M. State Complaints …………………………………………………………...…… Page 39

M-1. Do private school officials have the right to file a complaint under the State complaint

provisions in 34 CFR §§300.136 and 300.140?

M-2. If the parent of a parentally placed private school child with a disability files a State

complaint alleging that the services identified in the child’s services plan were not

provided, is it permissible for the SEA to resolve the complaint by requiring the LEA to

provide compensatory services? How would the provision of these services affect the

calculation of the expenditures to meet the required proportionate share?

N. Preschool Children…………………………………………………………………Page 41

N-1. What obligation, if any, do districts have to serve three through five-year-old children

who are parentally placed in private preschools?

O. Children in For-Profit Private Schools………………………………………… Page 43

O-1. Are children enrolled in a for-profit private school counted for the purpose of determining

the proportionate share and eligible to receive equitable services?

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Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools

A. Consultation with Private School Representatives and Representatives of Parents of

Parentally Placed Private School Children With Disabilities

Authority: The requirements for consultation are found in 34 CFR §300.134.

Question A-1: What is consultation?

Answer: As used in the regulations, consultation is a mandatory process that involves

discussions between the LEA, private school representatives, and representatives of parents of

parentally placed private school children with disabilities on key issues relating to the equitable

participation of eligible private school children with disabilities in Federally funded special

education and related services. (See more on the provision of equitable services in Parts C and D

of these questions and answers.) Each LEA (or, if appropriate, an SEA) must consult, in a timely

and meaningful way, with private school representatives and representatives of parents of

parentally placed private school children with disabilities during the design and development of

special education and related services for parentally placed private school children. Effective

consultation provides a genuine opportunity for all parties to express their views and to have

those views considered by the LEA before the LEA makes any decision that has an impact on

services to parentally placed private school children with disabilities. Timeliness is critical to

effective consultation and requires collaboration between the LEA and private school officials in

developing a timeline and selecting dates for consultation. Successful consultation establishes

positive and productive working relationships that make planning easier and ensure that the

services provided meet the needs of eligible parentally placed private school children with

disabilities.

A unilateral offer of services by an LEA with no opportunity for discussion is not adequate

consultation, as such an offer does not meet the basic requirements of the consultation process.

Only after discussing key issues relating to the provision of special education and related

services with all representatives may the LEA make its final decisions with respect

to the services to be provided to eligible private school children with disabilities.

Question A-2: What must the consultation process include?

Answer: Apart from specifying certain topics that must be addressed during consultation, the

regulations offer LEAs and private schools a great deal of flexibility in conducting the

consultation process. However, in accordance with 34 CFR §300.134, discussion between public

school and private school officials must address--

▪ The child find process and how parentally placed private school children suspected of having a

disability can participate equitably, including how parents, teachers, and private school officials

will be informed of the process;

▪ The determination of the proportionate share of Federal funds available to serve parentally

placed private school children with disabilities, including the determination of how the

proportionate share of those funds was calculated;

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▪ How the consultation process among representatives of the agency, the private schools, and

the parents of parentally placed private school children will take place, including how the

process will operate throughout the school year to ensure that parentally placed private

school children with disabilities identified through the child find process can meaningfully

participate in special education and related services;

▪ How, where, and by whom special education and related services will be provided, including a

discussion of types of services—including direct services and alternate service-delivery

mechanisms, as well as how the services will be apportioned if funds are insufficient to serve

all children--and how and when decisions regarding services will be made; and

▪ How, if the LEA representatives disagree with the views of the private school officials on the

provision of services or the types of services whether provided directly or through a contract, the

LEA will provide to the private school officials a written explanation of the reasons why

the LEA chose not to adopt the recommendations of the private school officials.

Question A-3: What records on consultation must an LEA maintain?

Answer: When timely and meaningful consultation has occurred, the LEA must maintain

documentation that the consultation has occurred, including a written affirmation signed by the

representatives of the participating private schools, as required by 34 CFR §300.135. Some have

asked if signing an attendance sheet at a meeting is all that is needed to document adequately

that timely and meaningful consultation has occurred. Though these attendance sheets provide an

accounting of who has attended meetings, the sheets themselves do not provide evidence that

ongoing consultation has occurred. Therefore, the written affirmation signed by the

representatives of the participating private schools should reflect that those officials have

indeed participated in timely and meaningful consultation that has continued throughout the

school year. If the representatives do not provide the affirmation within a reasonable period of

time, the LEA must forward the documentation of the consultation process to the SEA.

Question A-4: How can the consultation process be carried out effectively? Are there

any consultation models available?

Answer: There are a number of ways to carry out the consultation process. As such, the

Department does not endorse any specific consultation model. Examples of consultation

practices that have proven to work for LEAs include establishing a private school working group

to serve as the vehicle for ongoing consultation. In selecting members for this group, LEAs may

contact larger private school organizations such as the Catholic Schools Office in the local

diocese or the Board of Jewish Education for the region. Groups such as these can help facilitate

communication between their member schools and the LEAs in which they are located. Also,

establishing a timeline for consultation can help ensure that timely and meaningful consultation

occurs throughout the school year. The timeline can include meeting dates and times as well as

topics to be discussed.

In addition, in February, 2008 the Office of Non-Public Education published a booklet entitled

The Individuals With Disabilities Education Act (IDEA): Provisions Related to Children With

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Disabilities Enrolled by Their Parents in Private Schools, which explains the provisions related

to, and benefits available to, children with disabilities who are enrolled by their parents in private

schools when a free appropriate public education (FAPE) is not at issue. A copy of this booklet

can be found at: http://www2.ed.gov/admins/lead/speced/privateschools/index.html.

B. Child Find and Individual Evaluations

Authority: The requirements for child find for parentally placed private school children with

disabilities are found in 34 CFR §300.131.

Question B-1: Which LEA is responsible for conducting child find for parentally placed

private school children?

Answer: Under 34 CFR §300.131, the LEA where the private school is located is responsible for

conducting child find for parentally placed private school children. The child find requirements

for parentally placed children make clear that the LEA, after timely and meaningful consultation

with private school representatives, must conduct a thorough and complete child find process to

determine the number of parentally placed children with disabilities attending private schools

located in the LEA. (Under the prior provisions of the IDEA, the responsibility to conduct child

find for parentally placed private school children rested with the LEA in which the children

resided.)

Question B-2: What are the LEA’s responsibilities for identifying children with disabilities

placed by their parents in private schools?

Answer: Under 34 CFR §300.131, the LEA is responsible for locating, identifying, and

evaluating all children with disabilities who are enrolled by their parents in private, including

religious, elementary schools, as defined in 34 CFR §300.13, and secondary schools, as defined

in 34 CFR §300.36, located in the LEA. The LEA, in conducting child find for parentally

placed private school children with disabilities, must undertake activities similar to activities

undertaken for the agency’s public school children.

The child find process must be completed in a time period comparable to that for students

attending public schools in the LEA. The LEA where the private elementary or secondary school

is located has a number of options as to how it meets its child find responsibilities. For example,

the LEA may assume the responsibility itself, contract with another public agency (including the

public agency where the child resides), or make other arrangements by contracting with a third

party to conduct child find activities.

Child find is an ongoing process. Therefore, if a child who enters a private school without having

been previously identified as a child with a disability is suspected of having a disability during

the school year, the LEA where the private school is located is responsible for ensuring such a

child is identified, located, and evaluated. In addition, it is possible that a child who was

previously evaluated and determined not eligible for special education and related services by

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another LEA, may in fact be determined eligible for special education and related services at a

later time through the child find process conducted by the LEA where the private school is

located.

Question B-3: May an LEA require a private school to implement a response to intervention

(RTI) process before evaluating parentally placed private school children?

Answer: No. The IDEA and its implementing regulations in 34 CFR §§300.301– 300.311

establish requirements with which LEAs must comply when conducting an initial evaluation to

determine if a child qualifies as a child with a disability under Part B; these requirements do not

apply to private schools. IDEA requires States to adopt criteria for determining whether a

child has a specific learning disability, as defined in 34 CFR §300.8(c)(10), and these criteria

must permit, among other things, the use of a process based on the child’s response to scientific,

research-based intervention (known as RTI). 34 CFR §300.307(a)(2). Thus, although IDEA

permits the use of RTI in evaluating children suspected of having learning disabilities, it does not

require LEAs to use RTI. Even if a State's criteria permit LEAs to use RTI in evaluating children

suspected of having learning disabilities, IDEA does not require an LEA to use RTI for

parentally placed children attending private schools located in its jurisdiction. It would be

inconsistent with the IDEA evaluation provisions in 34 CFR §§ 300.301-300.311 for an LEA to

delay the initial evaluation because a private school has not implemented an RTI process with a

child suspected of having learning disabilities and has not reported the results of that process to

the LEA.

Question B-4: Is it possible for a parent to request evaluations from the LEA where the private

school is located as well as the district where the child resides?

Answer: The Department recognizes that there could be times when parents request that their

parentally placed child be evaluated by different LEAs if the child is attending a private school

that is not in the LEA in which the child resides. For example, because most States generally

assign the responsibility for making FAPE available to the LEA in which the child’s parents

reside, and because that could be an LEA that is different from the LEA in which the child’s

private school is located, parents could ask two different LEAs to evaluate their child for

different purposes at the same time. The Department, however, does not encourage this practice.

Note that a new requirement in 34 CFR §300.622(b)(3) requires parental consent for the release

of information between LEAs about parentally placed private school children. Therefore, as a

practical matter, one LEA may not know that a parent also requested an evaluation from another

LEA. However, the Department does not believe that the child’s best interests would be served if

parents request evaluations of their child by the resident LEA and the LEA where the private

school is located, even though these evaluations are conducted for different purposes. Subjecting

a child to repeated testing by separate LEAs in close proximity of time may not be the most

effective or desirable way to ensure that the evaluations are meaningful measures of whether a

child has a disability, or of obtaining an appropriate assessment of the child’s educational needs.

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Although the Department discourages parents from requesting evaluations from two LEAs, if the

parent chooses to request evaluations from the LEA responsible for providing the child FAPE

and from another LEA that is responsible for considering the child for the provision of equitable

services, both LEAs are required to conduct an evaluation.

Question B-5: Does the LEA where the private school is located have an obligation to make an

offer of a free appropriate public education (FAPE)?

Answer: The LEA where a child attends private school is responsible for ensuring equitable

participation. If a parentally placed private school child also resides in that LEA, then the LEA

would be responsible for making FAPE available to the child, unless the parent makes clear his

or her intent to keep the child enrolled in the private elementary or secondary school located in

the LEA. If a parentally placed private school child resides in a different LEA, the district in

which the private elementary or secondary school is located is not responsible for making FAPE

available to that child, but the LEA of the child’s residence would be responsible for

making FAPE available to that child..

If a determination is made through the child find process by the LEA where the private school is

located that a child needs special education and related services and a parent makes clear his or

her intent to keep the child enrolled in the private elementary or secondary school located in

another LEA, the LEA where the child resides is not required to make FAPE available to the

child. However, if the parents choose to accept the offer of FAPE and enroll the child in a public

school, then the LEA where the child resides is obligated to make FAPE available to the child.

Question B-6: Why is it important to identify the number of parentally placed private school

children with disabilities located in the LEA where the private school is located?

Answer: An accurate count of the number of eligible private school children with disabilities

enrolled by their parents in private schools located in the LEA is needed to calculate the

proportionate share of Part B funds that the LEA must expend annually for services for

parentally placed private school children with disabilities.

Question B-7: What specific child count information must the LEA maintain and report

to the SEA?

Answer: The regulations in 34 CFR §300.132(c) require the LEA to maintain in its records and

provide to the SEA the number of parentally placed private school children evaluated, the

number of parentally placed private school children determined to be children with disabilities

under Part B of the IDEA, and the number of children who are provided equitable services.

Question B-8: What are the LEA’s responsibilities for reevaluations of parentally placed

children?

Answer: The LEA where the private elementary school or secondary school is located is

responsible for conducting reevaluations of children with disabilities enrolled by their parents in

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the private elementary schools and secondary schools located in the LEA. Under 34 CFR

§300.303, an LEA must ensure that a reevaluation of each child with a disability is conducted

if (1) the LEA determines that the child’s educational or related services needs, in light of the

child’s academic achievement and functional performance, warrant a reevaluation; or (2) the

child’s parent or teacher requests a reevaluation. A reevaluation may occur not more than once a

year, unless the parent and LEA agree otherwise; and must occur at least once every three years,

unless the parent and LEA agree that a reevaluation is unnecessary.

Question B-9: What is the difference between child find under 34 CFR §§300.111 and 300.131?

Answer: The child find provision in 34 CFR §300.111 addresses the responsibility of a State to

conduct child find for all children with disabilities residing in the State, including children with

disabilities attending private schools. It ensures that all children with disabilities residing in the

State are identified, located, and evaluated. Section 300.111, which applies to States, is much

broader in scope than §300.131.

The child find provision in 34 CFR §300.131 addresses the responsibility of the LEA where the

private school is located to conduct child find for all children with disabilities who are enrolled

by their parents in private, including religious, elementary schools and secondary schools located

in the LEA. This provision addresses which children enrolled in private elementary schools and

secondary schools by their parents are eligible to receive services under the IDEA.

Question B-10: May amounts expended for child find, including individual evaluations, be

deducted from the required amount of Federal funds to be expended on services for parentally

placed private school children with disabilities?

Answer: No. There is a distinction under the IDEA between the obligation to conduct child find

activities, including individual evaluations, for parentally placed private school children with

disabilities, and the obligation to use an amount of funds equal to a proportionate amount of an

LEA’s subgrant to provide special education and related services to parentally placed private

school children with disabilities. The obligation to conduct child find, including individual

evaluations, exists independently from the obligation to provide equitable services. The costs

of child find activities, such as evaluations, may not be considered in determining whether the

LEA has spent an appropriate amount on providing special education and related services to

parentally placed private school children with disabilities. See 34 CFR §300.131(d).

Question B-11: In conducting the individual evaluations of children suspected of having

disabilities who are enrolled in private schools by their parents, may an LEA exclude children

suspected of having certain disabilities, such as those with specific learning disabilities?

Answer: No. The LEA where private elementary schools and secondary schools are located

must identify and evaluate all children enrolled in those schools who are suspected of having a

disability as defined under 34 CFR §300.8. LEAs may not exclude children suspected of having

certain disabilities, such as those with specific learning disabilities, from their child find

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activities. The Department recommends that LEAs consult with officials from private elementary

schools and secondary schools on how best to implement the State’s evaluation criteria for

identifying children with specific learning disabilities enrolled in private schools by their

parents.

Question B-12: If the LEA where the private elementary or secondary school is located conducts

an individual evaluation on a child and the parents disagree with the evaluation and wish to have

an independent educational evaluation (IEE) conducted, to which LEA must the parents bring

their request--the LEA where the private school is located, or the LEA where the child resides?

Answer: Parents would request an IEE from the LEA that conducted the evaluation with which

the parents disagree.

C. Equitable Services

Authority: The requirements for equitable services are found in 34 CFR §§300.132,

300.137, and 300.138.

Question C-1: What is the definition of the term “equitable services”?

Answer: Equitable services are services provided to parentally placed private school children

with disabilities in accordance with the provisions in the IDEA and its implementing regulations

in 34 CFR §§300.130 through 300.144.Under the IDEA, LEAs have an obligation to provide

parentally placed private school children with disabilities an opportunity for equitable

participation in the services funded with Federal Part B funds that the LEA has determined, after

consultation, to make available to its population of parentally placed private school children

with disabilities. The amount of Part B funds available for these services is based on the

proportionate share calculation, which is discussed in the Expenditures section of this Document.

The consultation process is important to ensure the provision of equitable services. How, where,

and by whom special education and related services will be provided for parentally placed

private school children with disabilities is determined during the consultation process. See 34

CFR §300.134(d).

Equitable services for a parentally placed private school child with a disability must be provided

in accordance with a services plan. A services plan must describe the specific special education

and related services that will be provided to a parentally placed private school child with

disabilities designated to receive services. See 34 CFR §300.138(b). The regulations in 34 CFR

§300.137(a) explicitly provide that children with disabilities enrolled by their parents in private

schools do not have an individual right to receive some or all of the special education and related

services they would receive if enrolled in the public schools.

Question C-2: Who provides equitable services to parentally placed private school children with

disabilities?

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Answer: The regulations in 34 CFR §300.138(c) clarify that equitable services must

be provided by employees of a public agency; or through contract by the public agency with an

individual, association, agency, organization, or other entity. An LEA may use Part B funds to

make public school personnel available in non-public facilities to the extent necessary to provide

equitable services for private school children with disabilities and if those services are not

normally provided by the private school. See 34 CFR §300.142(a). An LEA may use Part B

funds to pay for the services of an employee of a private school to provide equitable services if

the employee performs the services outside of his or her regular hours of duty and the employee

performs the services under public supervision and control. See 34 CFR §300.142(b).

D. Provision of Services

Authority: The requirements for provision of services are found in 34 CFR §§300.130, 300.132,

300.137(a), and 300.138.

Question D-1: What is the process for making decisions with respect to the services to be

provided to eligible parentally placed private school children with disabilities?

Answer: Timely and meaningful consultation must occur before any decisions are made that will

affect the participation of parentally placed children in Part B programs. Thus, decisions about

services may not be made in advance or in the absence of timely and meaningful consultation.

After timely and meaningful consultation has occurred with private schools representatives

and representatives of parents of parentally placed private school children with disabilities, the

LEA is responsible for making final decisions about all aspects of the services to be provided to

parentally placed private school children with disabilities. See 34 CFR §300.137(b). If the LEA

disagrees with the views of the private school officials on the provision of services or the types

of services, whether provided directly or through a contract, the LEA must provide to the private

school officials a written explanation of the reasons why the LEA chose not to accept the

recommendations of the private school officials. See 34 CFR §300.134(e).

Question D-2: Are there any particular kinds of services or specified amounts of services that

must be provided to parentally placed private school children with disabilities under Part B of the

IDEA?

Answer: No. Decisions about which services and the amounts of services children with

disabilities enrolled by their parents in private schools will receive are made during the

consultation process and are based on the needs of the children designated to receive services.

These children have no individual entitlement to receive some or all of the special education and

related services they would receive if enrolled in a public school. See 34 CFR §300.137(a).

Question D-3: May an LEA provide services to parentally placed private school children that are

in addition to the services provided pursuant to the Federal equitable participation requirements

and that are covered by the Federal proportionate share?

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Answer: Yes. The IDEA does not prohibit a State or LEA from using additional State or local

funds to provide special education or related services to parentally placed private school children

with disabilities that are in addition to the services required in 34 CFR §§300.130 through

300.144, consistent with State law or local policy. Additionally, as long as the LEA meets all the

other requirements of the IDEA, including providing FAPE to children with disabilities, it is

permissible for the LEA to spend more than the minimum amount of Part B funds on providing

services to children with disabilities placed by their parents in private schools.

Question D-4: Must the proportionate amount of Part B funds be used only for direct services to

parentally placed private school children with disabilities? Is it permissible to use funds for this

population on other services, such as consultative services, materials, equipment, or training?

Answer: Under 34 CFR §300.133(a), each LEA must spend a proportionate amount of Part B

funds on providing special education and related services (including direct services) to parentally

placed private school children with disabilities. The regulations specify that the LEA makes the

final decisions about the services to be provided to eligible parentally placed private school

children with disabilities, based in part on input provided through the consultation process by

appropriate private school representatives and representatives of parents of parentally placed

private school children with disabilities. See 34 CFR §300.137(b)(2). These decisions cannot be

made in advance of or in the absence of timely and meaningful consultation with private school

representatives and with representatives of parents of parentally placed private school children

with disabilities.

IDEA does not require an LEA to spend the proportionate share only for direct services. Rather,

through the consultation process described in 34 CFR §300.134, a determination must be made

about how the available amount of funds will be utilized so that the parentally placed private

school children with disabilities designated to receive services can benefit from the services

offered. Depending on the discussions during the consultation process, local circumstances, and

the amount of funds available to expend on services for this population of children, an LEA

could determine, after timely and meaningful consultation, that it will provide its population of

parentally placed private school children with disabilities with indirect services. See 34 CFR

§300.134(d)(1). These services could include consultative services, equipment, or materials for

eligible parentally placed children with disabilities or training for private school teachers and

other private school personnel. Under 34 CFR §300.138(c)(2), special education and related

services provided to parentally placed private school children with disabilities, including

materials and equipment, must be secular, neutral, and nonideological.

E. Services Plans

Authority: The requirements for services plans are found in 34 CFR §§300.132(b) and

300.138(b).

Question E-1: How often must a services plan be updated?

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Answer: The IDEA and its implementing regulations do not specify how often a services plan

must be updated. As provided in 34 CFR §300.138(b)(2)(ii), a services plan must, to the extent

appropriate, be developed, reviewed, and revised in accordance with the individualized education

program (IEP) requirements in 34 CFR §§300.321 through 300.324. The regulations in 34 CFR

§300.324(b)(1) require that a child’s IEP be reviewed periodically and not less than annually, to

determine whether the annual goals for the child are being achieved, and to be revised as

appropriate. As such, the Department suggests that a services plan be reviewed periodically, not

less than annually, to determine whether the annual goals for the child are being achieved and to

be revised as appropriate.

Question E-2: Does the parent of a parentally placed private school child have the opportunity

to participate in the development of a services plan?

Answer: Yes. As provided in 34 CFR §300.138(b)(2)(ii), a services plan must, to the extent

appropriate, be developed, reviewed, and revised in accordance with the requirements in 34 CFR

§§300.321 through 300.324. Therefore, to the extent appropriate, the meeting to develop a

services plan should be conducted in accordance with 34 CFR §300.321. Under 34 CFR

§300.321(a)(1), the parents of the child are required participants. Given the emphasis on parent

involvement in the IDEA, the Department believes that parents should have the opportunity to

participate in meetings to review and develop the services plan for their child.

Question E-3: What is the difference between an individualized education program (IEP) and a

services plan?

Answer: Children with disabilities enrolled in public schools or who are publicly placed in

private schools are entitled to a FAPE and must receive the full range of services under Part B of

the IDEA. These services are determined by the child’s IEP team and are necessary to meet the

child’s individual needs and provide FAPE. The IEPs for these children generally will be more

comprehensive than services plans developed for parentally placed private school children with

disabilities who are designated to receive services. This is because parentally placed children do

not have an individual entitlement to any or all of the services that the children would receive if

enrolled in a public school. Further, a services plan should reflect only the services offered to a

parentally placed private school child with a disability designated to receive services. In addition,

a services plan is required to meet the IEP content requirements described in section 614(d) of

the IDEA, or, when appropriate, for children aged three through five, the Individualized Family

Service Plan (IFSP) requirements described in section 636(d) of the IDEA, to the extent

appropriate, and only in relation to the services that are to be provided.

Question E-4: What is the process for developing a services plan for a parentally placed

private school child with a disability?

Answer: The LEA must initiate and conduct meetings to develop, review, and revise a services

plan for a parentally placed private school child with a disability designated to receive services.

The LEA must ensure that a representative of the religious or other private school attends each

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meeting. If the representative cannot attend, the LEA must use other methods to ensure

participation by the religious or other private school, including individual or conference

telephone calls. See 34 CFR §300.137(c). The services plan must, to the extent appropriate, be

developed, reviewed, and revised consistent with 34 CFR §§300.321 through 300.324. See 34

CFR §300.138(b)(2)(ii).

F. Location of Services and Transportation

Authority: The requirements for location of services and transportation are found in 34 CFR

§300.139.

Question F-1: Section 300.139(a) of the Part B regulations states that services to parentally

placed private school children with disabilities may be provided on the premises of private,

including religious, schools to the extent consistent with law. How is “to the extent consistent

with law” determined?

Answer: The phrase “to the extent consistent with law” is in section 612(a)(10)(A)(i)(III) of the

IDEA. The Department interprets this to mean that the provision of services on the premises of a

private school must take place in a manner that would not violate the Establishment Clause of the

First Amendment of the U.S. Constitution and would not be inconsistent with applicable State

constitutions or laws. The Department generally believes that, unless there is a compelling

rationale for these services to be provided off-site, LEAs should provide services on-site, at the

child’s private school, so as not to unduly disrupt the child’s educational experience.

Question F-2: How does an LEA determine the location where services will be provided to

parentally placed private school children with disabilities?

Answer: The location of services is one of the subjects that must be discussed during the

consultation process among LEA officials, private school representatives, and representatives of

parents of parentally placed private school children with disabilities. See 34 CFR §300.134(d).

Under 34 CFR §300.137(b), after the consultation process and giving due consideration to the

views of the private school officials, the LEA makes the final decision. See 34 CFR §300.137(b).

Question F-3: Must an LEA provide transportation I\n order for a child to benefit from or

participate in the services provided under the private school provisions?

Answer: The regulations in 34 CFR §300.139(b) require that if necessary for the child to benefit

from or participate in the services provided under the private school provisions, an LEA must

provide a parentally placed private school child with a disability transportation from the child's

school or the child's home to a site other than the private school; and from the service site to the

private school, or to the child's home, depending on the timing of the services. The IDEA does

not require LEAs to provide transportation from the child's home to the private school. The LEA

may include the cost of the transportation in calculating whether it has spent the proportionate

share of Federal Part B funds on providing services to parentally placed private school children

with disabilities as required by 34 CFR §300.133.

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G. Highly Qualified Teachers (HQTs) in Private Schools

Authority: The requirements for highly qualified teachers and the applicability to private school

teachers are found in 34 CFR §§300.18(h) and 300.138(a).

Question G-1: Do the HQT provisions in IDEA apply to private school teachers?

Answer: No. The HQT provisions do not apply to special education teachers hired by private

elementary and secondary schools, including private school teachers hired or contracted by

LEAs to provide equitable services to parentally placed private school children with disabilities

under 34 CFR §300.138.

Question G-2: If an LEA sends a special education teacher (employed by the LEA) to a

private school to provide special education and related services to a child, must that teacher meet

the HQT requirements in IDEA?

Answer: Yes. Any public elementary or secondary school teacher must meet the HQT

requirements.

Question G-3: May States exceed the IDEA’s requirements and require teachers in private

schools to hold certain credentials or certifications?

Answer: The regulations in 34 CFR §§300.18(h) and 300.138(a) make clear that the IDEA does

not require that private school teachers meet the same highly qualified teacher requirements as

teachers who are employed by public agencies. The IDEA is silent regarding additional

credentials or certifications that a State may require under State law. Therefore, States may

exceed the IDEA requirements and require teachers in private schools to hold certain credentials

or certifications if consistent with State law. If a State establishes requirements that exceed those

required by Part B of the IDEA or the Federal regulations, the State is required by 34 CFR

§300.199(a)(2) to identify in writing to the LEAs located in the State and to the Secretary of the

U.S. Department of Education (Secretary) that such rule, regulation, or policy is a State imposed

requirement that is not required by Part B of the IDEA or the Federal regulations.

H. Expenditures

Authority: The expenditure requirements are found in 34 CFR §300.133.

Question H-1: Is the proportionate share that an LEA must expend to provide equitable services

to children with disabilities placed by their parents in private schools different from the share an

LEA would have been required to spend prior to the 2004 IDEA reauthorization?

Answer: Yes. The revisions to the IDEA in 2004 made a significant change in the manner in

which the proportionate share is calculated. Under the 2004 amendments to the IDEA, the

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proportionate share calculation must be based on the total number of children with disabilities

who are enrolled in private schools located in the LEA, whether or not the children or their

parents reside in the LEA.

More specifically, each LEA must spend the following amounts on providing special education

and related services (including direct services) to parentally placed private school children with

disabilities:

(1) For children aged three through 21, an amount that is the same proportion of the LEA's total

subgrant under section 611(f) of the IDEA as the number of private school children with

disabilities aged three through 21 who are enrolled by their parents in private, including

religious, elementary schools and secondary schools located in the school district served by the

LEA is to the total number of children with disabilities in its jurisdiction aged three

through 21.

(2) For children aged three through five, an amount that is the same proportion of the LEA's total

subgrant under section 619(g) of the IDEA as the number of parentally placed private school

children with disabilities aged three through five who are enrolled by their parents in private,

including religious, elementary schools located in the school district served by the LEA is to the

total number of children with disabilities in its jurisdiction aged three through five. Appendix B

of the regulations provides an example of how to make this calculation.

Question H-2: Which children must an LEA count in order to calculate the proportionate share?

Answer: Children who have been evaluated and found eligible for special education and related

services, not just those children who receive services through an IEP or services plan, should be

included in the count to calculate the proportionate share. As discussed in 34 CFR §300.133(a),

each LEA must determine the total number of private school children with disabilities who

are enrolled by their parents in private elementary schools and secondary schools located in the

LEA and the total number of children with disabilities enrolled in public and private elementary

schools and secondary schools located in the LEA.

Question H-3: May an LEA expend more than the proportionate share of Part B funds on

children with disabilities placed by their parents in private schools?

Answer: Yes. As referenced in Question D-3, nothing in the IDEA prohibits an LEA from

expending more than the proportionate share. Each LEA is required to spend a minimum amount

of its subgrant under Part B of the IDEA for children with disabilities placed by their parents in

private schools. As long as the LEA meets all the other requirements of the IDEA, including

providing FAPE to children with disabilities, it is permissible for an LEA to spend more than the

minimum amount of Part B funds on providing services to children with disabilities placed by

their parents in private schools. In addition, as provided in 34 CFR §300.133(d), State and local

funds may be used to supplement, but not supplant, the LEA’s proportionate share of Federal

funds required to be expended on children with disabilities placed by their parents in private

schools.

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Question H-4: If an LEA does not expend the entire proportionate share of Part B funds on

children with disabilities placed by their parents in a private school that closes, what must the

LEA do with those unexpended funds?

Answer: Under 34 CFR §300.133(a), each LEA is required to spend a minimum amount of its

subgrant under Part B of the IDEA on children with disabilities placed by their parents in private

elementary and secondary schools. As provided in 34 CFR §300.133(a)(3), if an LEA has not

expended all of the proportionate share of its Part B subgrant by the end of the fiscal year for

which Congress appropriated the funds, the LEA must obligate the remaining funds for special

education and related services to children with disabilities placed by their parents in private

schools during a carry-over period of one additional year. A reduction in the number of children,

for example, when a school closes after the start of the school year, does not excuse the LEA

from spending its proportionate share to provide equitable services to children with disabilities

placed by their parents in private schools.

Question H-5: If an LEA does not expend the entire proportionate share of Part B funds on

children with disabilities placed by their parents in private schools by the end of the carry-over

period, may the LEA return the unexpended funds to the SEA to be spent by the SEA or

reallocated to another LEA?

Answer: No. If, after the carry-over period, the LEA is unable to expend the entire proportionate

share and assuming the LEA is in compliance with the child find, consultation, and other

requirements related to parentally placed private school children with disabilities in 34 CFR

§§300.129 through 300.144, the LEA may use the unexpended funds - at the end of the period

during which the funds may be spent on parentally placed private school children - to pay for

other allowable Part B expenditures for that same LEA. This situation should be the exception.

We emphasize that it is the clear intent of the Act that LEAs spend these funds on providing

special education and related services to parentally placed private school children with

disabilities, as provided in 34 CFR §§300.129 through 300.144. Therefore, if the LEA is not in

compliance with these requirements and has not expended the funds on parentally placed private

school children, the LEA must return the funds to the U.S. Department of Education.

The SEA is responsible for ensuring that LEAs are in compliance with these requirements. See

34 CFR §§300.149(a) and 300.600(b)(2). If an LEA has not expended the proportionate share by

the end of the carry-over period, the SEA can monitor the LEA to ensure that it is meeting these

requirements, including the requirement in 34 CFR §300.135 that the LEA obtain written

affirmation signed by representatives of participating private schools that timely and meaningful

consultation has occurred. In any event, there is no authority that permits the LEA to return the

funds to the SEA to be spent by the SEA or reallocated to another LEA.

Question H-6: How can the public find out the amount an LEA must expend to meet its

proportionate share of Part B funds?

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Answer: This information should be readily available from the LEA or SEA. As required by 34

CFR §300.134(b), the consultation process must include a determination of the proportionate

share of Federal funds available to serve parentally placed private school children with

disabilities, including how the proportionate share of funds is calculated.

Question H-7: Will the Federal and State allocation of Part B funds have to be adjusted to

include parentally placed private school children with disabilities receiving equitable services?

Answer: Under the Grants to States and Preschool Grants for Children with Disabilities

programs, Federal Part B funds are allocated to States, and from States to LEAs, using a

statutory formula that takes into consideration the amount of program funds received in a prior

year (the base year), along with the most recent population and poverty data (see 34 CFR

§§300.703, 300.705, 300.807, and 300.816). Each LEA calculates the proportionate share it must

spend on parentally placed private school children with disabilities based on the LEA’s subgrant.

Because Part B funds are allocated to States and LEAs using a statutory formula that is not

based on a child count, the amount of Part B funds allocated to States and LEAs cannot be

adjusted based on the number of private school students with disabilities receiving equitable

services. Adjustments in State funding could be made depending on each State’s laws and

funding mechanisms.

Question H-8: How are the “Maintenance of Effort” requirements affected when equitable

services are no longer provided with State and local funds to children with disabilities placed by

their parents in private schools? How are the “Maintenance of Effort” requirements affected for

an LEA that only used State and local funds in previous years to provide equitable participation

to children with disabilities placed by their parents in a private school?

Answer: In accordance with the regulations in 34 CFR §300.133(d), State and local funds may

supplement, but not supplant, the proportionate share of Federal funds required to be expended

for children with disabilities placed by their parents in private schools. This is a new requirement

under the IDEA and its implementing regulations. Prior to the reauthorization of the IDEA in

2004, if an LEA spent more than the Federal proportionate share of funds using State and local

funds, the LEA was not required to spend any Federal Part B funds on parentally placed private

school children. This is no longer permissible.

An LEA that previously used only State and local funds to provide equitable services to children

with disabilities placed by their parents in a private school and now uses Federal Part B funds to

provide equitable services must meet the maintenance of effort requirements in 34 CFR

§300.203. The exceptions to the maintenance of effort requirements in 34 CFR §300.204 do not

apply to funds used for equitable participation of parentally placed private school children with

disabilities. Therefore, the total or per capita amount of local or State and local funds expended

for the education of children with disabilities, including the amount of local or State and local

funds previously expended for equitable services to children with disabilities placed by their

parents in private schools, would have to be maintained, unless adjustments are permitted under

34 CFR §300.205.

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Question H-9: May an LEA include administrative costs to meet the requirement to spend a

proportionate share of Part B funds on children with disabilities placed by their parents in private

schools?

Answer: No. As stated in 34 CFR §300.133(a), each LEA is required to spend a proportionate

share of Federal Part B funds on providing special education and related services to children with

disabilities who are enrolled by their parents in private elementary schools and secondary

schools in order for the LEA to meet its responsibility for providing equitable services. We

interpret the reference to “special education and related services” to mean that administrative

costs could not be included in the amount each LEA must spend to meet this requirement. Thus,

an LEA may not expend the proportionate share of Federal Part B funds on administrative costs.

Question H-10: May an LEA use Part B funds that are required to be expended on equitable

services to make payments directly to a private school?

Answer: No. Part B funds for equitable services may not be paid directly to a private school.

Under 34 CFR §300.144(a), a public agency must control and administer the funds used to

provide special education and related services to parentally placed private school children with

disabilities. Under 34 CFR §300.141, an LEA may not use Part B funds to finance the existing

level of instruction in a private school, and such funds may not be used for meeting the needs of

a private school or the general needs of the students enrolled in the private school. The LEA

must use the proportionate share of Federal Part B funds to meet the special education and

related services needs of parentally placed private school children with disabilities.

Question H-11: Who is required to monitor an LEA’s expenditures of Part B funds to meet

the requirements for equitable services?

Answer: As required by 34 CFR §§300.149(a) and 300.600(b)(2), the SEA is responsible for

ensuring that LEAs meet all program requirements under Part B of the IDEA. This includes the

requirement that an LEA expend the proportionate share of Part B funds on providing special

education and related services to parentally placed private school children with disabilities in

accordance with 34 CFR §§300.129 through 300.144.

Question H-12: Must children whose parents decline special education and related services

be included in a school district’s proportionate share calculation?

Answer: Yes. As specified in 34 CFR §300.131(a), each LEA must locate, identify, and evaluate

all children with disabilities who are enrolled by their parents in private, including religious,

elementary schools and secondary schools located in the school district served by the LEA. The

number of parentally placed private school children with disabilities is used to determine the

amount that the LEA must spend on providing special education and related services to

parentally placed private school children with disabilities in the next subsequent fiscal year.

Under 34 CFR §300.300(d)(4), if a parent of a home-schooled or parentally placed private school

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child declines to consent to the initial evaluation or the reevaluation, the public agency may not

use the consent override procedures to seek to conduct the evaluation and, thus, may not include

the child in the annual count of the number of parentally placed private school children with

disabilities. If the LEA evaluates a parentally placed private school child and determines the

child eligible under the IDEA, but the parent declines the offer of special education and related

services, the LEA must include this child in the annual count of the number of parentally placed

private school children with disabilities. Thus, an LEA must include in its proportionate share

calculation eligible children with disabilities, including those children whose parents decline all

publicly funded services and place them in a private school at their own expense, provided those

children are enrolled by their parents in a private, including a religious, elementary school or

secondary school located in the school district served by the LEA.

I. Property, Equipment, and Supplies

Authority: The requirements for property, equipment, and supplies are found in 34 CFR

§300.144.

Question I-1: May a public agency place equipment and supplies for equitable services in a

private school?

Answer: Yes. The public agency may place equipment and supplies in a private school, but only

for the period of time needed to meet the equitable participation requirements for the Part B

program. The public agency must ensure that equipment and supplies placed in a private school

are used only for Part B purposes and can be removed from the private school without

remodeling the private school facility. The public agency must remove equipment and supplies

from a private school if the equipment and supplies are no longer needed for Part B purposes or

if removal is necessary to avoid unauthorized use of the equipment and supplies for other than

Part B purposes. See 34 CFR §300.144(b), (c), and (d).

Question I-2: May Part B funds for equitable services be used for repairs, minor remodeling, or

construction of private school facilities?

Answer: No. Part B funds for equitable services may not be used for repairs, minor remodeling,

or construction of private school facilities. See 34 CFR §300.144(e).

J. Out-of-State Children With Disabilities

Authority: The requirements for out-of-State children are found in 34 CFR §300.131(f).

Question J-1: Must the LEA where the private elementary and secondary schools are located

conduct child find activities for parentally placed private school children who reside outside the

State?

Answer: The child find provision in 34 CFR §300.131(f) makes clear that the LEA where the

private elementary and secondary schools are located is responsible for conducting child find,

including individual evaluations, of all parentally placed private school children suspected of

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having a disability enrolled in private elementary and secondary schools located in the LEA,

regardless of where those children reside. This includes all children from other States who may

be attending private elementary schools and secondary schools located in the LEA.

Question J-2: Who is responsible for determining and paying for services provided to out-of-

State parentally placed private school children with disabilities?

Answer: The LEA where the private school is located, in consultation with private school

officials and representatives of parents of parentally placed private school children with

disabilities, is responsible for determining and paying for the services to be provided to out-of-

State parentally placed private school children with disabilities attending private elementary and

secondary schools located in that LEA. Under 34 CFR §300.131(f), these out-of-State children

must be included in the group of parentally placed children with disabilities whose needs are

considered in determining which parentally placed private school children with disabilities will

be served and the types and amounts of services to be provided.

Question J-3: May an LEA require another LEA to pay for the services of a parentally placed

private school child with a disability from another State?

Answer: No. Section 300.133(a) of the regulations clarifies that the LEA where a private school

is located is responsible for spending a proportionate amount of its subgrant under Part B of the

IDEA on special education and related services for children enrolled by their parents in private

elementary and secondary schools located in the LEA. There is no exception for out-of-State

children with disabilities attending a private school located in the LEA. Therefore, out-of-State

children with disabilities must be included in the group of parentally placed children with

disabilities whose needs are considered in determining which parentally placed private school

children with disabilities will be served and the types and amounts of services to be provided.

Another LEA may not be charged for child find and equitable services even if the child with a

disability resides in another State.

Nothing in the IDEA precludes an LEA from contracting with a third party to fulfill its

obligations to ensure equitable participation. This includes contracting with a student’s LEA of

residence as a third party provider.

Question J-4: When making a determination regarding the services that an LEA will provide to

children with disabilities placed by their parents in private schools, could an LEA decide to only

provide services to students from their LEA or their State?

Answer: No. Although LEAs have discretion to determine how the proportionate share of

Federal Part B funds will be expended so long as the consultation requirements in 34 CFR

§300.134 are followed for all parentally placed private school children, LEAs cannot determine,

prior to or in absence of the timely and meaningful consultation process, that the proportionate

share of Federal Part B funds for equitable services can only be expended to meet the needs of

children who are residents of that LEA or State.

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K. Home-Schooled Children with Disabilities

Authority: The requirements for children with disabilities enrolled by their parents in private

schools are found in 34 CFR §§300.130 through 300.144.

Question K-1: Which LEA is responsible for conducting child find for children who are

homeschooled?

Answer: Generally, the LEA where the child resides is responsible for conducting child find

activities, including initial evaluations and reevaluations, for children who are homeschooled.

Question K-2: Are home-schooled children considered parentally placed private school

children?

Answer: Whether home-schooled children with disabilities are considered parentally placed

private school children with disabilities is determined under State law. If the State recognizes

home-schools as private elementary schools and secondary schools, children with disabilities in

those home-schools must be treated in the same way as other parentally placed private school

children with disabilities.

Question K-3: If a home-schooled child enrolled in the public school for the purpose of taking

some academic courses was identified as having a disability, would the student be treated as a

parentally placed private school child or as a public school child?

Answer: Whether a home-schooled child with disabilities enrolled in the public school for the

purpose of taking some academic courses would be treated as a parentally placed private school

child entitled to be considered for equitable services or as a public school child entitled to receive

FAPE is determined under State law. Even if such a child were not considered a public school

student, the public school would have to meet the requirements of section 504 of the

rehabilitation Act of 1973, as amended, and title II of the Americans with Disabilities Act, as

amended, by providing the child an equal opportunity to participate in or benefit from the

academic courses provided at the public school. In addition, the responsible public agency,

generally the LEA of residence, would have to make FAPE available to the child consistent with

Part B requirements if the parent seeks to enroll the child with a disability in the public school

full-time.

L. Due Process

Authority: The requirements for how due process and State complaints apply to children

parentally placed in private schools are found in 34 CFR §300.140.

Question L-1: Under what circumstances may a parent file a due process complaint under the

private school provisions?

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Answer: As provided in 34 CFR §300.140(b), a parent of a child enrolled by that parent in a

private school has the right to file a due process complaint regarding the child find requirements

in 34 CFR §300.131, including the requirements in 34 CFR §§300.300 through 300.311. Such a

complaint must be filed with the LEA in which the private school is located, and a copy must be

forwarded to the SEA by the LEA. The due process provisions in section 615 of the Act and 34

CFR §§300.504 through 300.519 of the regulations do not apply to issues regarding the provision

of services to any particular parentally placed private school child with disabilities whom an

LEA has agreed to serve because there is no individual right to services for such children under

the IDEA. Disputes that arise about equitable services are, however, properly subject to the State

complaint procedures in 34 CFR §§300.151 through 300.153. As provided in 34 CFR

§300.140(c), a parent may file a signed written complaint in accordance with the State complaint

procedures alleging that an SEA or LEA has failed to meet the private school requirements, such

as failure to properly conduct the consultation process.

M. State Complaints

Authority: The requirements for State complaints are found in 34 CFR §§300.136 and 300.140

Question M-1: Do private school officials have the right to file a complaint under the State

complaint provisions in 34 CFR §§300.136 and 300.140?

Answer: Yes. Under 34 CFR §300.136, a private school official has the right to complain to the

SEA that the LEA did not engage in consultation that was meaningful and timely or did not give

due consideration to the views of the private school official. Under this provision a complaint

must provide the basis of the private school official’s belief that the LEA did not comply with

the consultation requirements. The LEA must forward appropriate documentation related to the

complaint to the SEA. If the private school official is dissatisfied with the decision of the SEA,

the official may submit a complaint to the Secretary providing the basis of the official’s belief

that the LEA did not comply with the consultation requirements, and the SEA must forward the

appropriate documentation related to the complaint to the Secretary.

Question M-2: If the parent of a parentally placed private school child with a disability files a

State complaint alleging that the services identified in the child’s services plan were not

provided, is it permissible for the SEA to resolve the complaint by requiring the LEA to provide

compensatory services? How would the provision of these services affect the calculation of the

expenditures to meet the required proportionate share?

Answer: Under 34 CFR §300.140(c), any complaint alleging that an SEA or LEA has failed to

meet the requirements in 34 CFR §§300.132 through 300.135 and 300.137 through 300.144 must

be filed in accordance with the State complaint procedures described in 34 CFR §§300.151

through 300.153. If in resolving such a complaint, the SEA determines that compensatory

services are the appropriate remedy, such services may be ordered by the SEA if sufficient funds

are available from the proportionate share set aside in the LEA to provide equitable services

under 34 CFR §§300.129 through 300.144.

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If the proportionate share has been expended prior to the awarding of compensatory services to

resolve a complaint, the SEA cannot require an LEA to spend additional Part B funds, beyond

the minimum amount required under 34 CFR §300.133(a), to pay for compensatory services for

a parentally placed private school child with a disability. However, under 34 CFR §300.133(d),

State and local funds may supplement, but not supplant, the proportionate amount of Federal Part

B funds required to be expended for parentally placed private school children with disabilities.

The use of State and local funds, on top of the proportionate share of Part B funds, is permitted

but not mandatory. Therefore, if the proportionate share of Part B funds has been expended,

pursuant to the authority in 34 CFR §300.133(d), a State may, but is not required to, order an

LEA to use State and local funds to pay for compensatory services for a parentally placed private

school child with disabilities. It is important that as part of the consultation process, the LEA,

private school officials, and representatives of parents of parentally placed private school

children with disabilities consider the amount of the proportionate share of Part B funds

in determining what services will be provided in order to ensure an LEA has sufficient Part B

funds to implement the services plan for each parentally placed child with a disability who has

been designated to receive services.

N. Preschool Children

Authority: The requirements for children with disabilities enrolled by their parents in private

schools are found in 34 CFR §§300.130 through 300.144.

Question N -1: What obligation, if any, do districts have to serve three- through five-year old

children who are parentally placed in private preschools?

Answer: An LEA’s obligation to serve children aged three through five under the equitable

services provisions depends on whether a child is enrolled in a private school or facility that

meets the definition of “elementary school” in the IDEA and the final regulations. “Elementary

school” is defined in 34 CFR §300.13 as a nonprofit institutional day or residential school,

including a public elementary charter school that provides elementary education, as determined

under State law. Accordingly, three- through five-year-old children with disabilities who are

enrolled by their parents in a private school or facility that meets the State’s definition of

“elementary school” would be considered parentally placed and the equitable participation

provisions would apply.

A child aged three through five enrolled by his or her parents in a private school or facility that

does not meet the State’s definition of “elementary school” would not be eligible to be

considered for equitable services. However, the State’s obligation to make FAPE available to

such a child remains. Section 612(a)(1) of the IDEA requires that States make FAPE available to

eligible children with disabilities aged three through 21 in the State’s mandated age range (34

CFR §300.101). Because many LEAs do not offer public preschool programs, particularly for

three- and four-year olds, LEAs often make FAPE available to eligible preschool children with

disabilities in private schools or facilities in accordance with 34 CFR §§300.145 through

300.147. In these circumstances, there is no requirement that the private school or facility be an

“elementary school” under State law.

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In some instances, an LEA may make FAPE available in the private preschool program that the

parent has selected. If there is a public preschool program available, the LEA of residence may

choose to make FAPE available to a preschool child in that program. If the group of persons

making the placement decision, as specified in 34 CFR §300.116(a)(1), places the child in a

public or private preschool program and the parents decline the public agency’s offer of FAPE

because they want their child to remain in the private preschool program they have selected, the

public agency is not required to provide FAPE to that child. The parent may challenge the public

agency’s determination of what constitutes FAPE for their child using the State complaint and

due process procedures available under IDEA.

O. Children in For-Profit Private Schools

Authority: The requirements for children with disabilities enrolled by their parents in private

schools are found in 34 CFR §§ 300.130 through 300.144.

Question O-1: Are children enrolled in a for-profit private school counted for the purpose

of determining the proportionate share and eligible to receive equitable services?

No. The regulations in 34 CFR §300.130 define parentally placed private school children with

disabilities as children with disabilities enrolled by their parents in private, including religious,

schools or facilities that meet the definition of elementary school in 34 CFR §300.13 or

secondary school in 34 CFR §300.36. The definitions of elementary school in 34 CFR §300.13

and secondary school in 34 CFR §300.36 specify that the school must be nonprofit. Therefore,

children attending for-profit private schools would not be included in the proportionate share

calculation or be eligible for equitable services.

However, under 34 CFR §300.111, the State must ensure that all children with disabilities,

including children with disabilities attending private schools, who are in need of special

education and related services, are identified, located, and evaluated. This includes children with

disabilities attending for-profit schools. A State determines which public agency is responsible

for conducting child find under 34 CFR §300.111 for children suspected of having a disability

attending for-profit private schools. Generally, this agency is the LEA in which the child resides.