Services at Public Expense for Students with Disabilities in Private Schools
There are two basic scenarios why a parent would place her disabled child in a private school:
- the parent has a disagreement with the School District and unilaterally places the child in a private school, or
- the parent has no disagreement with the School District and unilaterally places the child in a private school.
Under Scenario #1, the parent believes that her child is not being provided a free and appropriate education (“FAPE”) at a public school, which is the reason why the parent is unilaterally placing her child in a private school.
Under Scenario #2, the parent simply believes that the private school will provide a better (or the “best”) education for her child.
I want to focus on one aspect of special education law when Scenario #2 occurs.
There is an interesting issue regarding whether a School District is required to provide special education services to a student with a disability and is enrolled in a private school. The Individuals with Disabilities Education Improvement Act (“IDEIA”) regulation section 300.452 addresses this scenario. This section provides:
(a) General. To the extent consistent with their number and location in the State, provision must be made for the participation of private school children with disabilities in the program assisted or carried out under Part B of the Act by providing them with special education and related services in accordance with Secs. 300.453-300.462.
(b) SEA Responsibility–services plan. Each SEA shall ensure that, in accordance with paragraph (a) of this section and Secs. 300.454-300.456, a services plan is developed and implemented for each private school child with a disability who has been designated to receive special education and related services under this part.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Therefore, in a situation where a parent enrolls her child in a private school, and the child is eligible for services under the IDEIA, it appears that the School District would be required to provide some services. However, the amount of funding for such services would be limited to federal “Part B” funds; and only a proportionate amount of those federal funds would be expended for such services.
How is the “proportionate share” calculated?
The Office of Special Education Programs issued a letter in 2000 that provides the proportional share formula and an extremely useful illustration explaining how to use the formula.
The question whether the School District should provide services to a child with a disability and is attending a private school has popped up from time to time. The regulations appear to address this somewhat adequately. The proportionate amount of federal funding that must be expended is clearly set forth in regulations 300.453(a). Whether the proportional amount of funding for any particular student has in fact been expended will, of course, require, a fact finding investigation.
Perhaps more important than calculating the proportionate share of federal funds is the recognition of the fact that the IDEIA does not require that a School District provide state funds to eligible children placed in private school. Thus, even if a proportional share of federal funds is expended for an eligible child placed in private school under the IDEIA, this does not necessarily mean that the School District will disburse state special education funds. This may be problematic because the amount of funding for special education services may be less than what eligible children placed in private schools would have received had they been enrolled in a public school.
For more information about the regulations governing parentally placed children in private schools, I highly recommend reading the Office of Special Education Programs (OSEP) letter, dated 2000: Parentally Placed Children in Private Schools.
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