POLICY LETTER: January 28, 2009 to Maryland Attorney Michael J. Eig

1/28/2009 Michael .1. Eig, Esq.Michael J. Eig and Associates, P.C.Attorneys at LawSuite 7605454 Wisconsin AvenueChevy Chase, MD 20815-6938Dear Mr. Eig:This is in response to your September 29, 2008 letter in which you request guidance from the Office of Special Education Programs (OSEP) at the U.S. Department of Education (Department). Office of Special Education and Rehabilitative Services, regarding the following situation.A student resides in Montgomery County, Maryland, but attends the Lab School of Washington -a private special education day school located in the District of Columbia. The student has never received special education services from Montgomery County Public Schools (MCPS). In April, 2008, his mother requested the necessary forms to begin the special education process(evaluation, eligibility, individualized education program (IEP), placement) with Montgomery County. After submitting the forms, a representative of MCPS informed the parent that, because the student is parentally-placed in a private school located in the District of Columbia, the District of Columbia Public Schools (DCPS) is responsible for the eligibility determination, not MCPS.As you mention in your letter, the Department has offered guidance on this issue in the Questions and Answers On Serving Children with Disabilities Placed by Their Parents in Private Schools (January 2007). The guidance provides that parents can request that their child be evaluated by the local educational agency (LEA) of residence for purposes of having a free appropriate public education (FAPE) made aPage 2 - Michael J. Eig, Esq.When a State delegates the responsibility for conducting child find for purposes of having a program of FAPE made available to the child to its LEAs, as is the case in Maryland, the LEA must ensure that all children with disabilities residing in its jurisdiction, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated. 34 CFR 300.111(a)(1). The State is responsible for making FAPE available to all children with disabilities residing in the State. 34 CFR 300.101(a). Most States, including Maryland, assign the responsibility for making FAPE available to the LEA in which the child's parents reside. 34 CFR 300.201. The determination that a child is eligible under the Individuals with Disabilities Education Act (IDEA) must be made on an individual basis by the parent of the child and a group of qualified professionals responsible for making eligibility determinations within the child's LEA. 34 CFR 300.306(a)(1).If a parent requests that the LEA responsible for providing FAPE to the child evaluate their child for the purpose of having a program of FAPE made available to the child, the LEA cannot refuse to conduct the evaluation and determine the child's eligibility for FAPE because the child attends a private school in another LEA. Therefore, the MCPS must evaluate the child described in your situacc: Carol Ann Baglin