POLICY LETTER: November 23, 2015 to Michael I. Inzelbuch
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Topic Areas: Private Schools—Parentally Placed Private School Children
Proportionate share / equitable services
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Proportionate share / equitable services
November 23, 2015
Michael I. Inzelbuch, Esq.
Santander Bank Building –
2nd
Floor
555 Madison Avenue
Lakewood, New Jersey 08701
Dear Mr. Inzelbuch:
This is in response to your June
10, 201 5 letter to me requesting guidance from the Office of
Special Education Programs (OSEP) regarding the manner in which a local educational agency
(LEA) may dedicate
an amount of the LEA ’s proportionate share of Federal funds required to be
set aside to provide equitable services
to eligible children with disabilities placed by their parents
in private schools
(proportionate share). Specifically, you ask whether an LEA may dedicate a
portion of its proportionate share funds as a part of a settlement agreement without timely and
meaningful
consultation as required under 34 CFR §300.134 of the regulations implementing the
Individuals with Disabilities Education Act (IDEA).
Your letter indicates that an LEA
placed a student in a private school as a means of providing
special education and related services in accordance with the student’s individualized education
program (IEP), but the parents initiated the due process procedures because of a dispute about
th e services provided to their child in the private school placement.
Your letter also indicates that
the LEA and the
student have a proposed settlement agreement whereby the student would
withdraw from the LEA and enroll directly in the private school as a
parentally placed student,
and the LEA would use a portion of their proportionate share to continue provid
ing services.
OSEP
does not review or interpret settlement agreements, and therefore expresses no view as to
the terms of this settlement agreement. In general, settlement agreements
are enforced by courts.
A settlement agreement reached through a mediation or resolution session may also be enforced
through a voluntary mechanism established by a State educational agency, pursuant to 34 CFR
§300.537,
provided that use of the State mechanism does not deny or delay a party’s right to seek
enforcement of a settlement agreement in an appropriate State or Federal court.
OSEP has previously provided guidance on the process for making decisions with respect to the
services to be provided to eligible parentally placed private school children with disabilities.
Specifically, we have stated that timely and meaningful consultation must occur before any
decisions are made that will affect the participation of parentally placed children in Part B
programs. See Question D
-1 of the Questions and Answers on Serving Children with Disabilities
Placed by Their Parents in Private Schools,
April 2011 available at:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C1%2C .
Thus,
decisions about services for parentally-placed students with disabilities and expenditure of Part B
funds reserved for equitable services may not be made in advance or in the absence of timely and
meaningful consultation.
After the LEA has engaged in timely and meaningful consultation wit
h
representatives of private schools 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.
Page 2 – Michael I. Inzelbuch
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 provid e to the private school officials a written explanation of the reasons why the LEA
chose not to accept the recommendations of the private school off icials. See 34 CFR §300.134(e).
Therefore, it would be inconsistent with the IDEA for an LEA unilaterally to dedicate a portion
of its proporti onate share funds to carry out the terms of a settlement agreement regarding the
provision of services to a particular student with a disability without complying with the
consultation requirements of 34 CFR §300.134.
Based 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 p resented.
If you have questions, please do not hesitate to contact Jennifer Wolfsheimer, at 202 -245 -6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
/s/
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
Summary
Addresses the use of an LEA’s proportionate share funds for settlements involving parentally placed private school children with disabilities.
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Last modified on October 24, 2023