POLICY LETTER: December 1, 2006 to U.S. Representative Christopher Smith
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December 1, 2006 to U.S. Representative Christopher Smith (MS Word)
MS WORDDecember 1, 2006 to U.S. Representative Christopher Smith (PDF)
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December 1, 2006 to U.S. Representative Christopher Smith (MS Word)
Dated December 1, 2006Honorable Christopher Smith2372 Rayburn House Office BuildingWashington, DC 20515-3004Dear Congressman Smith:This letter is in response to your correspondence of August 10, 2006, to Secretary Spellings seeking clarification of the provisions in the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) at 20 U.S.C. 1412(a)(10)(A) regarding the applicability of equitable participation requirements to children with disabilities ages three through five who are enrolled by their parents in private schools or facilities. Since that time, I met with your staff to discuss your concerns about the meaning of the final regulations at 34 CFR 300.130-300.144 Children with Disabilities Enrolled by Their Parents in Private Schools. Specifically, you are concerned that the New Jersey State Department of Education's (NJSDE's) interpretation of the new regulations is more restrictive than previous requirements regarding the provision of equitable services to children with disabilities ages three through five who are enrolled by their parents in private schools or facilities. I would like to take this opportunity to respond more fully to the concerns raised in your letter that hundreds of preschool children with disabilities in private schools will be cut off from their programs and unable to receive early educational intervention because of the changes made by IDEA 2004 and its implementing regulations to the equitable participation requirements. There are several ways that preschool children with disabilities receive special education and related services. While many preschool children with disabilities are not eligible for equitable participation services because, as explained below, they attend a private school or facility, such as a day-care center, that may not meet the State's definition of elementary school, this does not mean, as your letter suggests, that these children are not eligible for services under IDEA. Under section 612(a)(1) of IDEA, States must make a free appropriate public education (FAPE) available to eligible children with disabilities aged three through twenty-one in the State's mandated age range. (34 CFR 300.101) Because many local educational agencies (LEAs) do not offer public preschool programs, particularly for three- and four-year-olds, LEAs often make FAPE available to a preschool child with a disability in a private school or facility. In these circumstances, there is no requirement that the private school or facility be an elementary school under State law. As noted above, because many LEAs do not offer public preschool programs, particularly for three- and four-year-olds, LEAs often make FAPE available to an eligible preschool child with a disability in a private school or facility in accordance with 34 CFR 300.145-300.147. In some instances, the LEA may make FAPE available in the private school 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 the public preschool program. If the group of persons specified in 34 CFR 300.116(a)(1), making the placement decision, places the child in a public or private preschool program and the parents reject 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. In addition, as you know, IDEA 2004 retains the requirement that each LEA must spend a proportionate amount of the subgrant it receives from the State educational agency (SEA) under the Grants to States and Preschool Grants for Children with Disabilities program for the provision of special education and related services to children with disabilities enrolled by their parents in private elementary schools and secondary schools. Under IDEA 2004, significant changes were made in that the LEA where a private elementary school or secondary school or facility is located is responsible for child find, individual evaluations, and the provision of equitable services to parentally-placed private school children with disabilities, rather than the LEA in which the parents of such children reside. Under the previous regulations implementing Part B of the IDEA, private school children with disabilities were defined as children with disabilities enrolled by their parents in private schools or facilities. 34 CFR 300.450 (1999). Although the previous regulation did not specify that the private school or facility was required to meet the definition of elementary school or secondary school in IDEA, that has been the Department's consistent interpretation of the statute. The final regulations implementing section 612(a)(10)(A)(i) of IDEA 2004 at 34 CFR 300.130 now clarify that parentally-placed private school children with disabilities means children with disabilities enrolled by their parents in private, including religious, schools or facilities, that meet the definition of elementary school in 300.13 or secondary school in 300.36. Thus, children with disabilities ages three through five are considered to be parentally-placed private school children with disabilities enrolled by their parents in private, including religious, elementary schools, only if they are enrolled in private schools or facilities that meet the definition of elementary school in 34 CFR 300.13. Elementary school is defined at 34 CFR 300.13, as a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary educatBased on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. If you have any other questions, please feel free to contact my office. I hope the information in this letter adequately addresses your concerns. Please also feel free to contact the Office of Special Education Programs (OSEP) State Contact for New Jersey, Ms. Susan Falkenhan at (202) 245-7242 or the OSEP Preschool Grants Coordinator, Ms. Nancy Treusch at (202) 245-7553 for further assistance.Sincerely,/s/Alexa Posny, Ph.D.DirectorOffice of Special Education Programscc: Ms. Roberta WohleNew Jersey State DirectorPage PAGE 4 Honorable Christopher Smith
TOPIC ADDRESSED: Children with Disabilities Enrolled by their Parents in Private Schools |
SECTION OF IDEA: Part B—Assistance for Education of All Children With Disabilities; Section 612—State Eligibility
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