Proposed Guidance: Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools
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Proposed Guidance: Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools
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Proposed Guidance: Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools
400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2800
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
OFFICE OF SPECIAL EDUCATION PROGRAMS
OSEP
QA 21-03
Q UESTIONS AND A NSWERS
ON SERV ING C HILDREN WITH D ISABILITIES
P
LACED BY THEIR P ARENTS IN P RIVATE SCHOOLS
Revised December 2020
Part B of the Individuals with Disabilities Education Act (IDEA Part B) at Section
612(a)(10)(A) and its implementing regulations at 34 C.F.R. §§ 300.130 through 300.144
contain specific requirements regarding State and local responsibilities for equitable
services for parentally -placed private school children with disabilities. The U.S.
Department of Education (Department), Office of S pecial Education and Rehabilitative
Services (OSERS) issues this Questions and Answers (Q&A) document to provide State
educational agencies (SEAs), local educational agencies (LEAs), parents, private
school officials, advocacy organizations, and other interested parties with information
regarding these requirements.
1 This Q&A document updates and supersedes the
Department’s guidance, titled Questions and Answers on Serving Children with
Disabilities Placed by Their Parents in Private Schools issued in Apri l 2011, and includes
additional questions and answers that address topics that have arisen as the field
continues to implement the applicable provisions of IDEA and its implementing
regulations. Some of the new questions reflect recent policy letters, whil e others address
common questions that OSERS has received from stakeholders. New topics include:
▪ Equitable Services Providers — addressing personnel qualification requirements
that apply to equitable service s providers under IDEA.
1 This Q&A document only addresses requirements under the IDEA related to equitable services for parentally -placed
private school children with disabilities. Children with disabilities also have rights under two civil rights laws that prohibit
discrimination on the basis of disability —Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the
Americans with Disabilities Act (Title II). Section 504 prohibits disability discrimination by recipients of Federal financia l
assistance, such as S EAs and LEAs. Title II prohibits discrimination by public entities, including SEAs and LEAs, regardless
of receipt of Federal financial assistance. The Office for Civil Rights (OCR) in the U.S. Department of Education
enforces Section 504 in public element ary and secondary schools. Also, in this context, OCR shares in the enforcement
of Title II with the U.S. Department of Justice (DOJ). DOJ also provides technical assistance about the requirements of
Title II. More information about these laws is available at: www.ed.gov/ocr and www.ada.gov
.
PROPOSED GUIDANCE
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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requires parental consent for the release of information between LEAs
about parentally
-placed private school children.
Further, 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. For all of these reasons, the Department
discourages parents from seeking separate evaluations from two
different LEAs.
Question A -5: Does the LEA where the private school is located have an obligation to
make an offer of FAPE?
Answer: The LEA where a child attends private school is responsi ble for ensuring
equitable participation in programs assisted or carried out under IDEA
Part B. If a parentally -placed private school child also resides in the LEA
where the private school is located, then that LEA would also be
responsible for making FAPE available to the child, unless the parent
makes clear his or her intent to keep the child enrolled in a private
elementary or secondary school located in that LEA. If a parentally -
placed private school child resides in a different LEA, the LEA in which
th e private elementary or secondary school is located is not
responsible for making FAPE available to that child; rather, the LEA of
the child’s residence would be responsible for making FAPE available
to that child.
If a determination is made through the ch ild find process by the LEA
where the private school is located that a child has a disability under
34 C.F.R. § 300.8 and 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 that LEA, then
the LEA where the child resides is not required to make FAPE available
to the child. On the other hand, if the parent chooses 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.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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Question A
-6: If a parent makes clear his or her intention to keep the child enrolled in
the private school, is the LEA where the child resides obligated to offer
FAPE to the child and develop an individualized education program
(IEP) for the following school year, and annually thereafter?
Answer : No. Absent controlling case law in a jurisdiction, after the LEA where
the child resides has made FAPE available to the child, and the parent
makes clear his or her intention to not accept that offer and keep the
child in a private school, the LEA where the child resides is not
obligated to contact the parent to develop an IEP for the child for the
following year and annually, ther eafter. However, if the parent enrolls
the child in public school, the LEA where the child resides must make
FAPE available and be prepared to develop an IEP for the child. As
noted in the response to Question A -5 above, if the child attends a
private scho ol located in an LEA other than the LEA where the child
resides, that LEA is not required to make FAPE available to the child.
Question A -7 : Why is it important to identify the number of parentally -placed private
school children with disabilities located i n 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 I DEA Part B
funds that the LEA must expend annually for services for parentally -
placed private school children with disabilities. 34 C.F.R. § 300.133(c).
See Section N of this Q&A document for additional information on the
proportionate share.
Question A -8: What specific child count information must the LEA maintain and report
to the SEA?
Answer: Section 300.132(c) of Title 34 of the Code of Federal Regulations
requires 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 IDEA, and the number of
children who are provided equitable services.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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Question A
-9: What ar e the LEA’s responsibilities for reevaluations of parentally -
placed private school children with disabilities?
Answer: The LEA where private elementary schools or secondary schools are
located is responsible for conducting reevaluations of children with
disabilities enrolled by their parents in the private elementary schools
and secondary schools located in the LEA. Under 34 C.F.R. § 300.303(a),
an LEA must ensure that a reevaluation of each child with a disability is
conducted in accordance with §§ 300.304 through 300.311 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 reevaluatio n. 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. 34 C.F.R. § 300.303(b).
Question A -10: What is the difference between child find under 34 C.F.R. §§ 300.111
and 300.131?
Answer: The child find provision in 34 C.F.R. § 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, including religious, elementary and secondary
schools. It ensures that all children with disabilities residing in the State
are identified, located, and evaluated. Section 300.111, which applies
to St ates, is much broader in scope than 34 C.F.R. § 300.131.
The child find provision in 34 C.F.R. § 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 ser vices under IDEA.
Question A -11: May amounts expended for child find, including individual evaluations,
be deducted from the required amount of IDEA funds to be expended
on equitable services for parentally -placed private school children
with disabilities?
Answer : No. There is a distinction under IDEA between the obligation to
conduct child find activities, including individual evaluations, for
parentally -placed private school children with disabilities, and the
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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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 -p laced private school children with disabilities.
34 C.F.R. § 300.131(d).
Question A -12: May an LEA, conducting individual evaluations of children suspected
of having disabilities , who are enrolled in private schools by their
parents, exclude children suspe cted 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 susp ected of having a disability as defined under
34 C.F.R. § 300.8. An LEA may not exclude children suspected of
having certain disabilities, such as those with specific learning
disabilities, from its child find activities. The Department recommends
that an LEA 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 A -13: If the LEA where the private elementary school or secondary school is
located conducts an individual evaluation on a child and the parent
disagrees with that evaluation and wishes to request an independent
educational evaluation (IEE) at public expense , which LEA is
responsible for the IEE?
Answer: The parent has the right to an IEE, consistent with the requirements in
34 C.F.R. § 300.502, if the parent disagrees with an evaluation
conducted by the public agency. Therefore, if the LEA where the
private school is located conducted the evaluation, and if the parent
disagrees with that evaluation, the parent has the right to request an
IEE from that LEA at public expense. A parent is entitled to only one IEE
at public expense from the LEA that conducted the evaluation.
34 C.F.R. § 300.502(b)(5).
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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Question A
-14: What other options are available to the parent of a parentally -placed
private school child if he or she disagrees with the initial evaluation or
reevaluation of the child?
Answer: Under 34 C.F.R. § 300.140(b), the parent of a child with a disability who
disagrees with his or her child’s evaluation or reevaluation may file a
due process complaint to request a due process hearing with the LEA
where the private school is located. Further, if the child’s p arent
disagrees with the results of an initial evaluation or reevaluation
conducted by that LEA, the child’s parent may file a State complaint
pursuant to 34 C.F.R. §§ 300.151 through 300.153.
Question A -15: What options are available to a private school official who believes an
LEA has not complied with IDEA’s child find requirements?
Answer: Under 34 C.F.R. § 300.151(a), an organization or individual, including
one from another State, may file a signed, written complaint alleging
that a public agency has violated a requirement of Part B of IDEA or
the IDEA Part B regulations. Therefore, if a private school official
believes that an LEA has violated an IDEA requirement related to child
find, the official may file a State complaint with the SEA usi ng the
procedures in 34 C.F.R. §§ 300.151 through 300.153. This would include
a complaint by a private school official who disagrees with an initial
evaluation of a parentally -placed child conducted under
34 C.F.R. §§ 300.304 through 300.311. Note that par ental consent must
be obtained before an SEA may provide personally identifiable
information about a child to a non- parent complainant as part of the
complaint decision. 34 C.F.R. §§ 99.30 and 300.622. If the parent does
not provide consent, any personally identifiable information about the
child who is the subject of the complaint must be redacted from the
SEA’s written decision on the complaint.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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B C ONSULTATION WITH P RIVATE SCHOOL R EPRESENTATIVES AND
R EPRESENTATIVES OF P ARENTS OF P ARENTALLY -P LACED
P
RIVATE SCHOOL C HILDREN WITH D ISABILITIES
Authority: The requirements for consultation are found in
20 U.S.C. 1412(a)(10)(A)(iii) and 34 C.F.R. § 300.134.
Question B -1: What is consultation?
Answer : Consultation is a mandatory process that involves discussions bet ween
the LEA, private school officials, 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
Sections C and D of this Q&A document .) Under 34 C.F.R. § 300.134,
each LEA (or, if appropriate, an SEA) must consult in a timely and
meaningful way with priv ate 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 co nsultation provides a genuine opportunity for all
parties to express their views and to have those views considered by
the LEA where private schools are located before that LEA makes any
decision that has an impact on services for parentally -placed private
school children with disabilities.
Consultation must be an ongoing process, not solely an annual
meeting . See 34 C.F.R. § 300.134(c). 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 pr ivate 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 speci al education and
related services with all representatives may the LEA make its final
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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decisions with respect to the services to be provided to eligible private
school children with disabilities.
Question B -2: What constitutes meaningful consultation?
Ans wer: IDEA does not specify what constitutes “meaningful consultation,” but
in order for consultation to be meaningful, it must be timely and
ongoing throughout the school year. See 34 C.F.R. §§ 300.134 and
300.134(c). Establishing a timeline for consultat ion 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. As there is no specific schedule for consultation, States
and LEAs are able to determine the appropriate period between
consultation discussions based on circumstances in their jurisdictions.
The needs, number, and location of parentally -placed private school
children with disabilities may vary over time, depending on the
circumstances in a particular LEA in a particular year.
Many jurisdictions have found that it works well when consultation
meetings take place at appropriate times throughout the school year
to address, at a minimum, the child find process, the child count, the
ty pes of services that will be provided , when decisions regarding
services will be made, and to plan for the delivery and location of
services. Generally, consultation occurs at meetings convened by an
LEA with private school representatives and representati ves of parents
of parentally -placed private school children with disabilities who have
agreed to engage in the consultation process. In addition to face- to-
face meetings, an LEA and the representatives could mutually agree
to facilitate additional consulta tion activities through virtual means,
such as discussions via videoconferencing or conference calls and
written communications throughout the school year.
Question B -3: Does IDEA define “representatives of parents of parentally -placed
private school chil dren with disabilities” who must be included in the
consultation required by 34 C.F.R. § 300.134?
Answer: No. IDEA does not contain a definition of this term and does not
specify which individuals must be included in the consultation process
as representatives of parents of parentally -placed private school
children with disabilities. Determinations of which individuals should be
designated as representatives of parentally -placed private school
children with disabilities are best made at the State and local level . This
is so the LEA, or SEA if appropriate, along with private school officials
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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and representatives of parents can identify and acknowledge the
respective roles of those participating in the consultation process.
There is nothing in IDEA that would
prevent parents of parentally -
placed private school children with disabilities from representing
themselves in the consultation process.
Question B -4: Can parents of home- schooled children serve as parent
representatives in the consultation process?
Answer: Whether parents of home- schooled children or other representatives
of home -schooled children should be considered “representatives” of
parents of parentally -placed private school children with disabilities
depends on whether under State law, a child with a disability who is
being home schooled is regarded as a parentally -placed private
school child with a disability. (See more on home-schooled children
with disabilities in Section I of this Q&A document.)
Question B -5 : How does an LEA determine which private schools to contact?
Answer: Under 34 C.F.R. § 300.131, the LEA where private elementary schools
and secondary schools are located is responsible for locating,
identifying, and evaluat ing all children with disabilities who are
enrolled by their parents in private, including religious, elementary
schools, as defined in 34 C.F.R. § 300.13, and secondary schools, as
defined in 34 C.F.R. § 300.36, located in the LEA. In meeting this
responsibility, an LEA would need to reach out to all private schools
located within the district in order to determine the private schools that
will participate in consultation on child find under
34 C.F.R. § 300.134(a). LEAs may also wish to consult the Departm ent’s
National Center for Education Statistics database to search for private
schools, available at:
https://nces.ed.gov/surveys/pss/privateschoolsearch/
.
Question B -6 : 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 flexibility in
conducting the consultation process. However, in accordance with
34 C.F.R. § 300.134, discussions between public school and private
school officials must address—
▪ The child find process and how parentally -placed private
school children suspe cted of having a disability can participate
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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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;
▪ 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 LEA representatives disagree with the views of the
private school officials on the provision of services or the ty pes
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. See
34 C.F.R. § 3 00.134(a) –(e).
Question B -7 : What records on consultation must an LEA maintain?
Answer : When timely and meaningful consultation has occurred, the LEA
where private elementary schools and secondary schools are located
must maintain documentation that the c onsultation has occurred,
including a written affirmation signed by the representatives of the
participating private schools, as required by 34 C.F.R. § 300.135. Other
examples of documentation may include meeting agendas and
written records regarding topi cs addressed and decisions made.
Another way to document participation in the consultation process is
to gather signatures from participants at the end of each consultation
meeting . Since the consultation process is ongoing throughout the
school year, maintaining copies of the written affirmation forms
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
13
obtained during each of the consultation meetings is one way to help
document that the consultation process has occurred throughout the
school year.
Some have asked if signing an attendance sheet at a meetin
g 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 and can be submitted
as part of the documentation the LEA submits to the SEA, the sheets
themselves do not provide evidence that timely and meaningful
consultation has occurred. Therefore, the written affirmation signed by
the representatives of the participating private schools should reflect
that those officials have indeed p articipated in timely and meaningful
consultation that has continued throughout the school year.
If the representatives of participating private schools do not provide
the written affirmation within a reasonable period of time, the LEA must
forward the doc umentation of the consultation process to the SEA.
34 C.F.R. § 300.135(b). As required by 34 C.F.R. §§ 300.149(a) and
300.600(b)(2), the SEA is responsible for ensuring that LEAs meet all
program requirements under Part B of IDEA. This responsibility inclu des
carefully reviewing the documentation to ensure that the LEA made
reasonable efforts to meet its obligation to consult in a timely and
meaningful way with private school officials and representatives of
parents of parentally -placed private school children with disabilities.
34 C.F.R. § 300.134. If the LEA has not obtained a written affirmation
signed by appropriate private school officials, the SEA may request
that the LEA provide a reason for the lack of affirmation. If the reason is
that there is a disagreement between the LEA and private school
officials, the SEA could facilitate resolution of the differences.
Question B -8 : May an LEA dedicate IDEA Part B funds reserved for equitable services
to be expended as part of a settlement agreement witho ut timely and
meaningful consultation as required under 34 C.F.R. § 300.134?
Answer : No. Consistent with 34 C.F.R. § 300.134, timely and meaningful
consultation must occur before any decisions are made that will affect
the expenditure of IDEA Part B funds to support the equitable
participation of parentally -placed private school children with
disabilities in programs assisted or carried out under IDEA Part B. It
would be inconsistent with 34 C.F.R. § 300.134 for an LEA to unilaterally
designate a portion of the funds reserved for equitable services to
carry out the terms of a settlement agreement regarding the provision
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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of services to a particular child with a disability in the absence of
complying with the consultation requirements.
Question B -9 : What optio ns are available to a private school official who believes
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?
Answer: In an attempt to resolve concerns about consultation, there are
several actions a private school official can take if that official is
concerned that consultation that was meaningful and timely did not
occur with an LEA, or the LEA did not give due consideration to the
official’s views. Th e official may discuss the matter with LEA or SEA
representatives, including with individuals who were not part of the
consultation process. If the private school official does not wish to use
informal means or if the informal means used is not satisfactor y, the
private school official has the right to file a formal complaint with 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. 34 C.F.R. § 300. 136. Under this provision , a
complaint must provide the basis of the noncompliance by the LEA
with the applicable private school provisions in Part 300, and the LEA
must forward the appropriate documentation related to the
complaint to the SEA. If the priv ate school official is dissatisfied with the
decision of the SEA, the official may submit a complaint to the
Secretary of the U.S. Department of Education (Secretary). The official
must provide the information related to the LEA’s noncompliance with
the ap plicable private school requirements in 34 C.F.R. Part 300. The
SEA must forward the appropriate documentation related to the
complaint to the Secretary. 34 C.F.R. § 300.136(b)(3).
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C EQUITABLE SERVICES
Authority: The requirements for equitable services are found in
20 U.S.C. 1412(a)(10)(A) and 34 C.F.R. §§ 300.132, 300.137, and 300.138.
Question C-1: What are “equitable services” as applied to parentally -placed private
school children with disabilities?
Answer: Equitable services are special edu cation and related services,
including direct services, provided to parentally -placed private school
children with disabilities in accordance with the provisions in IDEA and
its implementing regulations in 34 C.F.R. §§ 300.130 through 300.144.
Under IDEA, LEAs have an obligation to provide parentally -placed
private school children with disabilities an opportunity to participate in
the services funded with IDEA Part B funds. A fter timely and meaningful
consultation, the LEA must make available services to those parentally -
placed private school children with disabilities that have been
designated to receive equitable services. The amount of IDEA Part B
funds is based on the proportionate share calculation, which is
discussed in Section N of this Q&A 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 C.F.R. § 300.134(d).
No parentally -placed private school child with a disability has an
individual right to receive some or all o f the special education and
related services that the child would receive if enrolled in a public
school. 34 C.F.R. § 300.137(a). If a child with a disability who is enrolled
in a private school by the child’s parents is designated to receive
equitable ser vices from an LEA, the LEA must develop, review, and
revise a services plan that describes the specific special education
and related services that will be provided to the child. See
34 C.F.R. § 300.138(b).
Question C -2: Who provides equitable services to parentally -placed private school
children with disabilities?
Answer: 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 .
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
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34
C.F.R. § 300.138(c). An LEA may use IDEA Part B funds to make
public school personnel available to provide services in non- public
facilities — (1) to the extent necessary to provide equitable services for
private school children with disabilities ; and (2) if those services are not
normally provided by the private school. See 34 C.F.R. § 300.142(a) . An
LEA may use IDEA 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 C.F.R. § 300.142(b). As noted previously, the LEA where the
private school is located is responsible for providing equitable services
to parentally -placed children with disabilities attending private schools
located in that LEA.
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D P ROVISION OF EQUITABLE SERVICES
Authority: The requirements for the provision of equitable services are found in
20 U.S.C. 1412(a)(10)(A) and 34 C.F.R. §§ 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 IDEA Part B programs. 34 C.F.R. § 300.134. Thus, decisions
about services may not be made in advance or in the absence of
timely and meaningful cons ultation. After timely and meaningful
consultation has occurred with private school representatives and
representatives of parents of parentally -placed private school children
with disabilities, the LEA where private elementary schools and
secondary school s are located is responsible for making final decisions
about all aspects of the services to be provided to parentally -placed
private school children with disabilities attending private schools
located in the LEA. 34 C.F.R. § 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.
34 C.F.R. § 300.134(e). See Question B- 9 for options available to private
school officials to resolve concerns regarding the consultation process.
Question D -2: Are there particular k inds 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 amount of services
children with disabilitie s enrolled by their parents in private schools will
receive are made during the consultation process and are based on
the needs of the parentally -placed private school children with
disabilities 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 C.F.R. § 300.137(a).
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Question D
-3: May an LEA provide services to parentally -placed private school
children wit h disabilities that are in addition to those services it must
provide as equitable services under IDEA?
Answer: Yes. 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 C.F.R. §§ 300.130 through
300.144, consistent with State law or local policy. Additionally, as long
as the LEA meets all the other requirements of ID EA, including
providing FAPE to children with disabilities enrolled in public schools , it
is permissible for the LEA to spend more IDEA Part B funds than the
proportionate amount of IDEA Part B funds on providing special
education and related services to c hildren with disabilities placed by
their parents in private schools.
Question D -4: If a State or LEA, through the use of State or local funds, chooses to
provide additional special education and related services to
parentally -placed private school children with disabilities, must the LEA
also expend the proportionate amount of IDEA Part B funds it is
required to expend on equitable services?
Answer: Yes. While a State or LEA may choose to provide additional special
education and related services to parentally -placed private school
children with disabilities with State and local funds, the LEA also must
continue to calculate and expend the required IDEA Part B
proportionate share funds to provide special education and related
services, including direc t services, to parentally-placed private school
children with disabilities in accordance with the formula in
34 C.F.R. § 300.133(a). State and local funds may supplement and in
no case supplant the proportionate amount of Federal funds required
to be expen ded for parentally -placed private school children with
disabilities. 34 C.F.R. § 300.133(d).
Question D -5: How is the maintenance of effort (MOE) requirement in
34 C.F.R. § 300.203 affected when an LEA chooses to use local, or State
and local, funds to pro vide additional services to parentally -placed
private school children with disabilities?
Answer: Generally, 34 C.F.R. § 300.203 provides that an LEA may not reduce
the amount of local, or State and local, funds that it spends for the
education of children with disabilities below the amount it spent for the
preceding fiscal year, except as provided in 34 C.F.R. §§ 300.204
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19
(exceptions to MOE) and 300.205 (adjustment to local fiscal efforts in
certain fiscal years). The exceptions to the MOE requirement do no
t
apply to funds used for the equitable participation of parentally -
placed private school children with disabilities in programs assisted or
carried out under IDEA Part B.
Therefore, the total or per capita amount of local, or State and local,
funds expend ed for the education of children with disabilities (which
includes the amount of local, or State and local, funds 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 C.F.R. § 300.205. An LEA is not required to maintain
the same amount of local, or State and local, funding for a specific
line item or category of expenditures (such as the amount of funds
budgeted and spent to provide services to parentally- placed private
school children with disabilities).
3 An LEA meets the MOE requirement if
it maintains either the total amount or per capita amount of funds
when budgeting and expending local, or State and local, funds for the
education of children with disabilities.
Question D -6: Must the IDEA Part B funds designated for equitable services be used
only for direct services to parentally -placed private school children
with disabilities? Is it permissible to use those funds on other servic es,
such as consultative services, materials, equipment, or training?
Answer: Under 34 C.F.R. § 300.133(a), each LEA must spend a proportionate
amount of IDEA Part B funds on providing special education and
related services (including direct services) to p arentally-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 pro vided through the consultation process by
appropriate private school representatives and representatives of
parents of parentally -placed private school children with disabilities.
See 34 C.F.R. § 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.
3 Under 34 C.F.R. § 300.202(a)(3), IDEA Part B funds provided to an LEA must be used to supplement, not supplant, State,
local, and other Federal funds. Prior to 1992, the Part B regulations had included a “particular cost test” for determ ining
whether supplanting occurred. The “particular cost test” was removed from the regulations by an amendment
published in the Federal Register on August 19, 1992 (57 Fed. Reg. 37652).
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IDEA does not require an LEA to spend the proportionate share only for
direct services. Rather, through the consultation process described in
34
C.F.R. § 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 these children, an L EA
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 C.F.R. § 300.134(d)(1). These
services could include consultativ e services, equipment, or materials
for eligible parentally -placed children with disabilities or training for
private school teachers and other private school personnel. Under
34 C.F.R. § 300.138(c)(2), special education and related services
provided to pa rentally-placed private school children with disabilities,
including materials and equipment, must be secular, neutral, and
nonideological.
Question D -7: Because the child count forms the basis for the proportionate share
calculation, what is an LEA’s obli gation to a parentally-placed child
who is identified as a child with a disability after that calculation has
been made for the school year?
Answer: Under 34 C.F.R. § 300.134, 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 children
with disabilities enrolled by their parents in private schools. The
consultation process must include a discussion of how that process will
operate throughout the school year to ensure that parentally -placed
private school children with disabilities can meaningfully participate in
special education and related services (See also Section B of this Q&A
document) . 34 C.F.R. § 300.134(c). The discussions could include how
to address fluctuations in the population of children to be served, and
how to serve children who are identified during the school year in
which expenditures are made after the proportionate share
calculation for that school year has been determined. Note that the
child count conducted between October 1 and December 1,
inclusive of the previous fiscal year, is used to determin e the amount
that the LEA must spend on providing special education and related
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21
services to parentally
-placed private school children with disabilities in
the next subsequent fiscal year. 34 C.F.R. § 300.133(c). However, once
the proportionate amount of ID EA Part B funds has been expended,
IDEA does not prohibit an SEA or LEA from using State or local funds to
provide special education and related services to parentally -placed
private school children with disabilities in addition to the services
required in 34 C.F.R. §§ 300.130 through 300.144, if consistent with State
law or local policy. At the same time, an LEA is not required to expend
more than the proportionate share of IDEA Part B funds on the
provision of equitable services to children with disabilities. Thus,
ongoing consultation and careful planning to account for fluctuations
in the population of children to be served are critically important.
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E SERVICES P LANS
Authority: The requirements for services plans are found in
20 U.S.C. 1412(a)(10)(A)(i) and (vi) and 34 C.F.R. §§ 300.132(b) and
300.138(b).
Question E-1: What is the difference between an IEP and a services plan?
Answer: Children with disabilities enrolled in public schools or who are publicly
placed in private schools or facilities by public agencies are entitled to
FAPE and must receive the full range of services under Part B of IDEA.
34 C.F.R. §§ 300.101, 300.146, and 300.201. These services are
determined by the child’s IEP team and are necessary to meet the
child’s individual needs and to provide FAPE to the child . Generally,
the IEPs for these children 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 no
parentally -placed child with a disability has an individual right to
receive some or all of the special education and related services that
the child would receive if enrolled in a public school.
34 C.F.R. § 300.137(a) . Further, a services plan should reflect only the
services offered by the LEA to a parentally -placed private school child
with a disability designated to receive services. In addition, a services
plan, to the extent appropriate, is required to meet the IEP content
requirements described in 34 C.F.R. § 300.320 or, when applicable, for
children aged three through five, the Individualized Family Service Plan
(IFSP) requirements described in 34 C.F.R. § 303.344, and only in relation
to the services that are to be provided . 34 C.F.R. § 300.138(b)(2).
Questio n E-2: How often must a services plan be updated?
Answer: The IDEA and its implementing regulations do not specify how often a
services plan must be updated. As provided in
34 C.F.R. § 300.138(b)(2)(ii), a services plan must, to the extent
appropriate, be developed, reviewed, and revised in accordance
with the IEP requirements in 34 C.F.R. §§ 300.321 through 300.324. The
regulations in 34 C.F.R. § 300.324(b)(1) require that a child’s IEP be
reviewed periodically but not less than annually, to determine whether
the annual goals for the child are being achieved, and whether it
needs to be revised, as appropriate. As such, the Department suggests
that a services plan be reviewed periodically, but not less than
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23
annually, to determine whether the annual goals for
the child are
being achieved and whether revisions are needed.
Question E -3: Do the parents 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 C.F.R. § 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 C.F.R. §§ 300.321 through
300.324. Therefore, to the extent appropriate, the meeting to develop
a services plan should be conducted in accordance with
34 C.F.R. § 300.321. Under 34 C.F.R. § 300.321(a)(1), the parents of the
child are required participants. Given the emphasis on parent
involvement in IDEA, the Department believes that parents should
have the opportuni ty to participate in meetings to review and develop
the services plan for their child. The options available to parents who
disagree with their child’s services plan, including the amount of
services offered, are described in Section Q of this document in
Q uestions Q-1 through Q -3.
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 where the private school is located 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 elementary school or secondary school
attends each 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 C.F.R. § 300.137(c). The services plan must, to the extent
appropriate, be developed, reviewed, and revised consistent with
34 C.F.R. §§ 300.321 through 300.324. See 34 C.F.R. § 300.138(b)(2)(ii).
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24
F LOCATION OF SERVICES AND TRANSPORTATION
Authority: The requirements for location of services and transportation are found
in 20 U.S.C. 1412(a)(10)(A) and 34 C.F.R. § 300.139.
Question F- 1: Section 300.139(a) of Title 34 of the Code of Federal 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 statutory language.
See 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 and Free Exercise Clauses of the First Amendment of the
U.S. Consti tution as interpreted by the U.S. Supreme Court and
conforming State 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,
to not 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 o ne 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 C.F.R. § 300.134(d).
Under 34 C.F.R. § 300.137(b), after timely and meaningful consultation
and giving due consideration to the views of the private school
officials, the LEA makes the final decisions with respect to the services
to be provided to eligible parentally -placed private school children
with disabilities.
Question F- 3: Must an LEA provide transportation in order for a child to benefit from
or receive equitable services?
Answer: Section 300.139(b) of Title 34 of the Code of Federal Regulations
requires that, if necessary for the child to benefit from or receive
equitable services, an LEA must provide a parentally -placed private
school child with a disability transportation from the child’s school or
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25
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 LEA may include the cost of the
transportation in calculating whether it has spent the proportionate
share of IDEA Part B funds on providing services to p
arentally-placed
private school children with disabilities as required by
34 C.F.R. § 300.133. Generally, u nless 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 , to not unduly disrupt the child’s
educational experience (see also Question F-1) .
Question F- 4: Is an LEA required to provide transportation services to parentally -
placed private school children with disabilities to locations outside of
the LEA’s geogra phic boundaries, including across State lines?
Answer: IDEA does not restrict the provision of required transportation to
locations within the LEA or within a State. H owever, nothing in IDEA
requires LEAs to provide transportation from the home of a parentally -
placed private school child with a disability to the private school, if
that transportation is provided solely to enable the parentally- placed
private school child with a disability to attend the private school.
34 C.F.R. § 300.139(b)(2). This is so regardless of whether the private
school is located in the same State or a different State. As noted in
Question F -3 above, if transportation is necessary for a parentally -
placed private school child with a disability to benefit from or receive
equitable services, an LEA must provide the child transportation in
accordance with 34 C.F.R. § 300.139(b)(1) . The extent of the
transportation provided, which could be the subject of consultation,
could depend on the timing of the services . Generally, 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, to not
unduly disrupt the child’s educational experience.
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G EQUITABLE SERVICE P ROVIDERS
Authority: The IDEA pers onnel qualification requirements and their applicability to
equitable services providers are found in 20 U.S.C. 1412(a)(10)(A)(vi)
and 1412(a)(14) and 34 C.F.R. §§ 300. 138(a ) and 300. 156.
Question G -1: Do the IDEA personnel qualification requirements appl y to private
school teachers providing equitable services ?
Answer: No. P rivate elementary school and secondary school teachers who
are providing equitable services to parentally -placed private school
children with disabilities do not have to meet the special education
teacher qualification requirements in 34 C .F .R. §300.156(c). See
34 C.F.R. § 300.138((a)(1) .
Question G -2: Must public school teachers providing equitable services meet IDEA
Part B personnel qualification requirements?
Answer: Yes. Any person employed as a public school teacher in the State who
teaches in an elementary school, secondary school, or middle school
providing special education and related services must meet the IDEA
personnel qualification requirements in 34 C.F.R. § 300. 156(c), including
public school teachers providing equitable services. The IDEA Part B
regulations require that each person employed as a public -school
special education teacher in the State who teaches in an elementary
school, middle school, or secondary school obtain full State
certification as a special education teacher . This includes certification
obtained through an alternate route to certification as a special
educator, if such alternate route meets minimum requirements
described in 34 C.F.R. § 200.56(a)(2)(ii) as such section was in effect on
November 28, 2008; or by passing the State special education teacher
licensing examination, and holding a license to teach in the State as a
special education teacher, except in the case of a teacher teaching
in a public charter school . A teacher teaching in a public charter
school must meet the certification or licensing requirements, if any, set
forth in the State’s public charter school law. Teachers employed by
public schools may not have special education certification or
licensure requirements waived on an emergency, temporary, or
provisional basis, and must hold at least a bachelor's degree.
34 C.F.R. § 300.156(c)(ii) –(iii).
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Question G
-3: May a State exceed the IDEA’s requirements and require teachers in
p rivate schools to hold certain credentials or certifications?
Answer: Yes. 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 IDEA or its implementing regulations, the State is
required by 34 C.F.R. § 300.199(a)(2) to identify in writing to the LEAs
located in the State and to the Secretary that such rule, regulation, or
policy is a State- imposed requirement that is not required by Part B of
IDEA or its implementing regulations.
Question G -4: May an LEA employ a private school teacher to provide equitable
services to parentally -placed private school children with disabilities?
Answer: Yes, provided the private school employee performs the services
outside of his or her regular hours of duty and performs the services
under public supervision and control . 34 C.F.R. § 300.142.
Question G -5: May an LEA contract with a faith -based organization to provide
equitable services under IDEA?
Answer: Yes. Under 34 C.F.R. § 300.138(c)(1), services in a child’s services plan
and those under 34 C.F.R. §§ 300.139 through 300.143 must be
provided: (i) by employees of a public agency; or (ii) thro ugh contract
by the public agency with an individual, association, agency,
organization, or other entity. See also 34 C.F.R. § 300.134(e) (written
explanation of the LEA regarding services, including services provided
directly or through a contract) . Therefore, there is nothing in IDEA that
would prohibit an LEA from contracting with a faith -based organization
to provide such services.
Further, under 2 C.F.R. § 3474.15(b), a faith-based organization is
eligible to contract with grantees and subgrantees, in cluding States,
on the same basis as any other private organization with respect to
contracts for which such other organizations are eligible. In selecting
providers of goods and services, grantees and subgrantees, including
States, must not discriminate f or or against a private organization on
the basis of the organization's religious character or affiliation and must
ensure that the award of contracts is free from political interference, or
even the appearance of such interference, and is done on the basi s
of merit, not on the basis of religion or religious belief, or lack thereof.
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H O UT -OF -S TATE C HILDREN WITH D ISABILITIES AND C HILDREN
WITH
D ISABILITIES W HOSE P ARENTS LIVE IN O THER C OUNTRIES
Authority: The requirements for serving out -of -State children are found in
20 U.S.C. 1412(a)(10)(A)(ii)) and 34 C.F.R. § 300.131(f).
Question H -1: Must the LEA where private elementary and secondary schools are
located conduct child find activities for parentally -pl aced private
school children who reside outside the State?
Answer: Yes. The child find requirements in 34 C.F.R. § 300.131(f) make clear
that the LEA , where the private elementary and secondary schools,
including religious schools, are located , is responsible for conducting
child find . This includ es individual evaluations, of all children suspected
of having a disability enrolled by their parents in private elementary
and secondary schools located in the LEA, regardless of where those
children reside. This obligation applies regardless of whether those
children reside in a State other than a State where the private schools
they attend are located.
Question H -2: Are IDEA’s child find and equitable services provisions applicable to
children with disabilities attending private schools located in the LEA if
their parents live in another country?
Answer: Yes. The obligation to consider children with disabilities for equitable
services extends to all children with disabilities who are enrolled by
their parents in private, including religious, elementary and secondary
schools within the LEA’s jurisdiction, regardless of whether or not the
parent resides in that State. 34 C.F.R. § 300.131(f). See also,
71 Fed. Reg. 46540, 46591 (Aug. 14, 2006).
Question H -3 : Who is responsible for determining and paying for services provided to
parentally -placed private school children with disabilities who reside
out -of- State ?
Answer : The LEA where the private school is located, is responsible for paying
for the services to be prov ided to out-of -State parentally -placed
private school children with disabilities attending private elementary
and secondary schools located in that LEA. LEAs are required to
consult with appropriate private school officials and representatives of
parentall y-placed private school children with disabilities to determine
who will receive services. Under 34 C.F.R. § 300.131(f), these
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
29
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 H -4: May an LEA require another LEA to pay for the services of a parentally -
placed private school c hild with a disability from another State?
Answer: No. Section 300.133(a) of Title 34 of the Code of Federal 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 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 b e 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. At the same time, n othing in IDEA precludes an LEA from
contracting with a third party to fulfill its obligations to ensure equitable
participation . This includes contracting with a child ’s LEA of residence
as a third -party provider.
Question H -5: 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 provide services only to students from
their LEA or their State?
Answer: No. Although LEAs have discretion to determine how the proportionate
share of IDEA Part B funds will be expended so long as the consultation
r equirements in 34 C.F.R. § 300.134 are followed for all parentally -
placed private school children, LEAs cannot determine, prior to or in
the absence of the timely and meaningful consultation process, that
the proportionate share of Part B funds for equitab le services can only
be expended to meet the needs of children who are residents of that
LEA or State.
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30
I H OME -S CHOOLED C HILDREN WITH D ISABILITIES
Authority: The requirements for serving children with disabilities enrolled by their
parents in private schools are found in 20 U.S.C. 1412(a)(10)(A) and
34 C.F.R. §§ 300.130 through 300.144.
Question I-1: Are home -schooled children with disabilities considered parentally -
placed private school children with disabilities?
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 school s must be treated in the same way as other
parentally -placed private school children with disabilities.
Question I -2: Which LEA is responsible for conducting child find for children who are
home- schooled?
Answer: Generally, the LEA where the child resides is responsible for conducting
child find activities, including initial evaluations and reevaluations, for
children who are home schooled.
Question I -3: If State law permits a home -schooled child with a disability to attend
the public school for part of the school day, would the child be treated
as a parentally -placed private school child or as a public school
child?
Answer: Whether a home- schooled child with disabilities is 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. This is so, even if the child is permitted to
attend public school for part of the school day . The responsible public
agency, generally the LEA of residence, would have to make FAPE
available to the child consistent with IDEA Part B requirements if the
parent seeks to enroll the child with a disability in the public school
full -time.
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31
J P RESCHOOL C HILDREN
Authority: The requirements for providing equitable services to children with
disabilities enrolled by their parents in private schools are found in
20 U.S.C. 1412(a)(10)(A) and 34 C.F.R. §§ 300.130 through 300.144.
Question J- 1: Must an LEA use any of the Section 619 funds it receives under IDEA’s
Preschool Grants for Children with Disabilities program to provide
equitable services to parentally -placed private school children with
disabilities aged three through five?
Answer: Yes. Section 619 of IDEA provides formula grants to States to make
available special education and related services for children with
disabilities aged three through five. To be eligible for these grants,
States must make FAPE available to all eligible childre n with disabilities
aged three through give. As explained in Question N -1, f or children
aged three through five, an LEA must spend an amount that is the
same proportion of the LEA’s total subgrant under S ection 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 disab ilities in its jurisdiction aged three through five.
Question J-2: What obligation, if any, does the LEA where private preschools are
located 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 its implementing regula tions.
“Elementary school” is defined in 34 C.F.R. § 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 preschool
or facility that meets the State’s definition of “elementary school”
would be considered parentally -placed and the equitable
participation provisions would ap ply.
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32
Question J-
3: Is a child with a disability aged three through five enrolled by his or her
parents in a private preschool that does not meet the State’s definition
of “elementary school” considered a parentally -placed private school
child with a disabi lity?
Answer: No. A child age d three through five who is enrolled by his or her
parents in a private preschool or facility that does not meet the State’s
definition of “elementary school” does not meet the definition of a
parentally -placed private school child with a disability under IDEA and
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 a State make FAPE
available to eligible children with disabilities aged three through 21 in
the State’s mandated age range (34 C.F.R. § 300.101) . Because many
LEAs do not offer public preschool programs, particularly for three- and
four -year -olds, LEAs where preschool children reside o ften make FAPE
available to these eligible preschool children with disabilities by
placing them in private schools or facilities in accordance with
34 C.F.R. §§ 300.145 through 300.147. In these circumstances, there is
no requirement that the private schoo l or facility be an “elementary
school” under State law consistent with the definition in
34 C.F.R. § 300.13.
Question J- 4: Are there any situations in which an LEA may make FAPE available to a
preschool aged child with a disability in a private preschool program?
Answer: Yes. In some instances, an LEA may make FAPE available in the private
preschool program that the parent has selected . But if there is a public
preschool program available, the LEA where the child resides may
choose to make FAPE available to the preschool child in that program .
If the group of persons making the placement decision, as specified in
34 C.F.R. § 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 LEA is not required to
provide FAPE to that child. The parent may challenge the
determination of what constitutes FAPE for their child using the
mediation, Sta te complaint, and due process procedures available
under IDEA . See 34 C.F.R. §§ 300.506, 300.507- 300.513, and
300.151- 300.153.
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33
Question J-
5: If a child with a disability is not placed in a public preschool program
by the LEA where the child resides because that LEA does not operate
public preschool programs for three - and four -year -olds, and the
parent voluntarily enrolls that their child with a disability and pays
tuition in a public preschool program in another LEA , can the LEA
where the public preschool program is located, or the LEA where the
child resides, use part of its proportionate share of IDEA Part B funds
designated for equitable services to provide special education and
related services to that child?
Answer: No. The proportionate share of IDEA Part B funds to provide equitable
services may only be spent in connection with the provision of special
education and related services to parentally- placed private school
children with disabilities attending private elementary schools or
secondary school s located in the LEA . As noted in the response to
Q uestion A -1 above, under 34 C.F.R. § 300.130, parentally -placed
private school children with disabilities are defined as 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, other than children with
disabilities covered under §§ 300.145 through 300.147 .
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34
K STATE V OUCHER AND SCHOLARSHIP P ROGRAMS
Authority: The requi rements for serving children with disabilities enrolled by their
parents in private schools are found in 20 U.S.C. 1412(a)(10) and
34 C.F.R. §§ 300.130 through 300.144.
Question K-1: Are children with disabilities who attend private schools through a
Stat e-funded school choice voucher or scholarship program
considered parentally -placed private school children with disabilities
under IDEA?
Answer: Yes. Under IDEA, if the State and its LEAs have made FAPE available to
eligible children with disabilities in a public school but their parents
elect to place them in private schools through a State voucher or
scholarship program, such children are considered parentally -placed
private school children with disabilities if they attend private, including
religious, el ementary schools or secondary schools or facilities that
meet the definitions in 34 C.F.R. § 300.13 and 300.36, respectively.
34 C.F.R. § 300.130; see also 34 C.F.R. § 300.148(a) . Parentally -placed
private school children with disabilities attending private schools
through a State- funded voucher or scholarship program must be
considered for equitable services in the same manner as any other
parentally -placed private school children with disabilities.
34 C.F.R. § 300.132(a).
Question K -2: Do all of the IDEA requirements for children with disabilities enrolled by
their parents in private schools apply to SEAs and LEAs when children
with disabilities are enrolled by their parents in private schools
participating in a State -funded voucher or scholarship program ?
Answer: Yes. In general, IDEA requires States and LEAs in which private schools
are located to ensure the equitable participation of parentally -placed
private school children with disabilities enrolled in private, including
religious, elementary schools and secondary schools in programs
assisted or carried out under IDEA Part B through the provision of
special education and related services. 20 U.S.C. 1412(a)(10)(A)(i) and
34 C.F.R. § 300.132(a) . IDEA provides no exception to this requirement if
parentally -placed private school children with disabilities attend
private schools that meet the definitions of elementary school in
34 C.F.R. § 300.13 and secondary school in 34 C.F.R. § 300.36.
Accordingl y, LEAs where such private elementary schools and
secondary schools are located must ensure that children with
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
35
disabilities placed by their parents in private schools participating in
State-
funded voucher or scholarship programs are included in the
group o f parentally -placed private school children with disabilities who
are eligible for equitable services, including special education and
related services from the LEA where private schools are located.
The needs of these children must be considered through the
consultation process required under 34 C.F.R. § 300.134. The child find
requirements for locating, identifying, and evaluating children are fully
applicable to children enrolled by their parents in private schools who
participate in a State -funded voucher or scholarship program.
34 C.F.R. § 300.131. Thus, children with disabilities enrolled by their
parents in private schools who participate in a State -funded voucher or
scholarship program, must be included in the annual child count. The
child count mus t be used to determine the amount of IDEA Part B funds
that the LEA must spend on providing special education and related
services to children with disabilities enrolled by their parents in private
schools located in the LEA. 34 C.F.R. § 300.133(c). Parent ally-placed
private school children with disabilities attending private schools under a
State voucher or scholarship program who are designated to receive
services must also have a services plan that sets out the services the LEA
will provide to the child. 34 C.F.R. §§ 300.132(b) and 300.137(c).
However, no parentally- placed child with a disability has an individual
right to receive some or all of the special education and related
services that the child would receive if enrolled in a public school
(34 C.F. R. § 300.137(a Depending on discussions that occurred during
the consultation process and the amount of funds generated for the
proportionate share the child may receive a different amount of
services than children with disabilities in public schools
(34 C .F.R. § 300.138(a)(2)). Even if the LEA offers to provide equitable
services to the child, a parent of a parentally- placed child with a
disability may decline the offer of services to their child.
Question K -3: May a State require a parent of a child with a disability to revoke
consent for their child to receive any special education and related
services from the LEA, as a condition of participation in a State -funded
private school choice voucher or scholarship program?
Answer: No. A State may not conditi on the receipt of a school choice voucher
or scholarship on the parent’s revocation of consent to FAPE, including
special education and related services. Parentally- placed private
school children with disabilities are not entitled to FAPE in connection
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36
with their enrollment by their parents in a private school participating in
a State-
funded voucher or scholarship program. See
34 C.F.R. §§ 300.148(a) and 300.137(a). As explained above, IDEA
provides no exception to the equitable services requirements that are
applicable to States and LEAs where private, including religious,
elementary schools and secondary schools are located.
20 U.S.C. 1412(a)(10)(A)(i) and 34 C.F.R. § 300.132(a). Therefore, a
parent’s revocation of consent for their child’s continued recei pt of
FAPE , including special education and related services , if offered by an
LEA as equitable services, does not relieve a State and its LEAs of their
responsibilities to provide equitable services under IDEA to parentally-
placed private school children with disabilities who are eligible to
receive such services.
Question K -4 : Are there any children participating in a State -funded voucher or
scholarship program that an LEA is not required to evaluate or consider
for equitable services?
Answer: Yes. If an LEA proposes to evaluate or reevaluate a child attending a
private school through a State -funded voucher or scholarship program,
and the child’s parents refuse consent or fail to respond to the request
to provide consent for their child’s initial evaluation or reevaluation, the
LEA proposing to evaluate or reevaluate the child may not seek to
override the parent’s refusal to consent by using IDEA’s mediation or
due process procedures. 34 C.F.R. § 300.300(d)(4)(ii). This would mean
that such a child wo uld not be included in the proportionate share
calculation under 34 C.F.R. § 300.133.
Question K -5: If a child with a disability who received a State school choice voucher
or scholarship reenrolls in a public school, is the child considered a
child with a disability?
Answer: Yes. Assuming a parentally -placed private school child’s disability
determination is current, a child continues to be considered a child
with a disability under IDEA . Therefore, upon reenrollment in a public
school, the child would retu rn as a child with a disability, as defined in
34 C.F.R. § 300.8. Consistent with 34 C.F.R. §§ 300.101 and 300.201, the
LEA where the child resides must make FAPE available to the child,
unless the LEA determines that the child is no longer eligible for sp ecial
education and related services. 34 C.F.R. § 300.305(e).
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37
L C HILDREN IN FOR -P ROFIT P RIVATE SCHOOLS
Authority: The requirements for providing equitable services to children with
disabilities enrolled by their parents in private schools are found in
20 U.S.C. 1412(a)(10)(A) and 34 C.F.R. §§ 300.130 through 300.144.
Question L-1: Are children enrolled in a for -profit private school counted for the
purpose of determining the proportionate share of IDEA Part B funds to
be spent on equitable services, and eligible to receive equitable
services?
Answer: No. The regulations in 34 C.F.R. § 300.130 define parentally -placed
p rivate 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 C.F.R. § 300.13 or secondary school in 34 C.F.R. § 3 00.36. The
definitions of elementary school in 34 C.F.R. § 300.13 and secondary
school in 34 C.F.R. § 300.36 specify that the school must be nonprofit.
Therefore, children with disabilities who attend for- profit private schools
may not be included in the p roportionate share calculation or be
considered for equitable services.
However, under 34 C.F.R. § 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 through the child find
process. Th e child find process includes children with disabilities
attending for- profit schools. A State determines which public agency is
responsible for cond ucting child find under 34 C.F.R. § 300.111 for
children suspected of having a disability attending for -profit private
schools . Generally, this public agency is the LEA where the child
resides.
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38
M EXTENDED P UBLIC SCHOOL C LOSURES
Authority: The requirements for serving children with disabilities enrolled by their
parents in private schools are found in 20 U.S.C. 1412(a)(10)
34 C.F.R. §§ 300.130 through 300.144.
Question M -1 : Is an LEA required to provide equitable services to private school
children with dis abilities under IDEA Part B during extended closures of
public and private schools?
Answer : If an LEA where private elementary schools and secondary schools are
located closes its physical buildings as a result of social distancing
measures and other lim itations that occur as a result of a pandemic or
health emergency, but is providing virtual instruction or other remote
learning opportunities for the general student population, then the LEA
would be required to provide equitable services to private schoo l
children with disabilities u nder IDEA Part B, as determined through the
consultation process under 34 C.F.R. § 300.134. Under such
circumstances, the LEA may consider other services or alternate
means of service delivery , if feasible, such as through the use of
telecommunications, including telephone or videoconferencing,
virtual platforms, or consultative services.
In those situations in which an LEA must close its schools because the
functioning or delivery of educational services is fully disrupted (i.e. ,
due to a pandemic or natural disaster), and does not provide any
educational services to the general student population, then an LEA
would not be required to provide equitable services to private school
children with disabilities under IDEA Part B during that same period of
ti me.
Question M-2 : If an LEA is required to provide equitable services to private school
children with disabilities during an emergency that closes brick and
mortar facilities , how will private schools be notified of the availability
and delivery of such services during the school closure?
Answer : The Department suggests that LEAs include this as a topic of discussion
during the consultation process. During timely and meaningful
consultation, stakeholders might consider establishing a communication
process for use throughout an extended brick and mortar closure of
public and private schools. For example, the LEA may establish an
emergency test message system or email distribution lists, to ensure any
needed information is shared with key stakeholders. The LEA should
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
39
consult with private school representatives and representatives of
parents of parentally-
placed private school children with disabilities to
establish procedures for how equitable services can be provided in the
case of extended school closures, including remote service delivery. The
LEA should share those procedures with the private school
representatives or officials and representatives of the parents.
Additionally, LEAs should coordinate such planning with appropriate
private school officials to make sure that they have access to
information related to equitable services for their eligible children with
disabilities and, as applicable, their teachers and parents.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
40
N P ROPORTIONATE SHARE C ALCULATION FOR EQUITABLE
SERVICES
Authority: The requiremen ts for serving children with disabilities enrolled by their
parents in private schools are found in 20 U.S.C. 1412(a)(10)(A) and
34 C.F.R. §§ 300.130 through 300.144.
Question N-1: How does an LEA calculate the proportionate share of its IDEA subgrant
unde r Section 611 and S ection 619 that it must spend on providing
special education and related services to parentally -placed private
school children with disabilities?
Answer: The proportionate share calculation must be based on the total
number of children with disabilities who are enrolled in private
elementary and secondary schools, including religious schools,
located in the LEA, whether or not the children or their parents reside in
the LEA. 34 C.F.R. §§ 300.132 and 300.133(a) . More specifically, each
LE A 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 S ection
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 S ection
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 to 34 C.F.R. Part 300 provides an example of how to make
this calculation.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
41
Question N
-2: Which children must an LEA count in order to calculate the
proportionate share?
Answer: All children who have been evaluated and found eligible for special
education and related services —not solely those children who receive
services through an IEP or services plan —must be included in the count
to calculate the proportionate share. See 34 C.F.R. §§ 300.132(c) and
300.133(c). As described in 34 C.F.R. § 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 and secon dary
schools located in the LEA, and the total number of children with
disabilities enrolled in public and private elementary and secondary
schools located in the LEA in order to calculate the proportionate
share of IDEA Part B funds that must be expended on equitable
services.
Question N -3: 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 C.F.R. § 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 priv ate 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 .
34 C.F.R. § 300.133(b) and (c)(2).
Under 34 C.F.R. § 300.300(d)(4), if a parent of a home -schooled or
parentally -placed private school child declines to consent to the initial
evaluation or the reevaluation, the public agency may not use the
mediation or due process 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.
On the other hand, if the LEA evaluates a parentally- placed private
school c hild, subject to the consent of the parent, and determines that
the child qualifies as a child with a disability under the IDEA, but the
parent declines the offer of special education and related services,
the LEA still must include this child in the annua l count of the number of
parentally -placed private school children with disabilities.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
42
34
C.F.R. § 300.133(c); see also 34 C.F.R. § 300.132(c) . Accordingly, an
LEA must include in its proportionate share calculation all eligible
children with disabilities e nrolled by their parents in private, including
religious, elementary and secondary schools located in the LEA, and
also includ e those children whose parents decline all publicly funded
services and place their children with disabilities in a private school at
their own expense.
Question N -4: Can other Federal funds, including reimbursement that an LEA receives
from a Federal funding source, be used to offset the proportionate
share amount that the LEA must expend under IDEA Part B?
Answer: No. The proport ionate amount of IDEA Part B funds that each LEA must
expend on the provision of special education and related services for
parentally -placed children with disabilities attending private schools
located in the LEA is calculated based on an LEA’s total subg rant
under IDEA S ection 611(f) for children with disabilities aged three
through 21 and the LEA’s total subgrant under IDEA S ection 619(g) for
children with disabilities aged three through five. Therefore, other
Federal funding or reimbursements available from Federal funding
sources may not be used to offset or reduce the proportionate
amount of IDEA Part B funds that the LEA is required to expend on
equitable services. See 34 C.F.R. § 300.133.
Question N -5: Can an LEA identified with significant dispropor tionality under IDEA Part
B subtract expenses related to providing comprehensive coordinated,
early intervening services (CEIS) before the State or LEA calculates the
proportionate share of IDEA funds that must be used by the LEA to
provide special educati on and related services to parentally -placed
private school children with disabilities?
Answer: No. An LEA may not deduct the funds that it is required to reserve for
CEIS or voluntarily reserves for CEIS before calculating the amount of
funds it is requi red to spend on equitable services for children with
disabilities parentally -placed in private schools. The calculations for
both CEIS and the proportionate share must be based on the total
amount of the subgrants the LEA receives under 34 C.F.R. §§ 300.705
and 300.815. 34 C.F.R. § 300.133(a)(proportionate share) and
34 C.F.R. § 300.226(a)(CEIS).
The LEA must calculate the proportionate share of IDEA S ection 611
and Section 619 funds that it must expend for parentally -placed
private school children with dis abilities enrolled in private elementary
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
43
schools and secondary schools located in the LEA
. This calculation
must be based on an amount that is equal to a proportionate share of
the LEA’s total subgrant award under S ection 611(f) of IDEA and the
LEA’s total subgrant award under S ection 619(g) of IDEA.
34 C.F.R. § 300.133(a) and Appendix B to 34 C.F.R. Part 300.
Question N -6: How can the public find out the amount an LEA must expend to meet
its proportionate share of IDEA Part B funds?
Answer: This informatio n should be readily available from the LEA or SEA . As
required by 34 C.F.R. § 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
di sabilities, including how the proportionate share of funds is
calculated.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
44
O EXPENDITURES AND A LLOWABLE U SE OF FUNDS
Authority: The requirements for calculating the expenditure of IDEA Part B funds
for equitable services are found in 20 U.S.C. 1412(a)(10)(A) and
34 C.F.R. § 300.133. Requirements for the cost principles governing the
allowable use of Federal funds are found in the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards (Uniform Guidance) at 2 C.F.R. Part 200, Subpart E.
Question O-1: May an LEA include administrative costs to meet the requirement to
spend a proportionate share of IDEA Part B funds on children with
disabilities placed by their parents in private schools?
Answer: No. As stated in 34 C.F.R. § 300.133(a), each LEA is required to spend a
proportionate share of IDEA Part B funds on providing special
education and related services to children with disabilities who are
enrolled by their parents in private, including religious, 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 IDEA Part B funds on administrative costs.
Question O -2: May an LEA use IDEA Part B funds that are required to be expended on
equitable services to make paym ents directly to a private school?
Answer: No. IDEA Part B funds for equitable services may not be paid directly to
a private school . Under 34 C.F.R. § 300.144(a), a public agency must
control and administer the funds used to provide special education
an d related services to parentally -placed private school children with
disabilities . Under 34 C.F.R. § 300.141, an LEA may not use IDEA 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 IDEA Part B funds to meet the
special education and related services needs of parentally -placed
private school ch ildren with disabilities.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
45
Question O
-3: May other children in the private school derive an incidental benefit
from the special education and related services provided to those
parentally -placed private school children with disabilities designated
to receiv e services under IDEA?
Answer: Under 34 C.F.R. § 300.141, an LEA may not use IDEA Part B funds to
finance the existing level of instruction at a private school or to
otherwise benefit the private school. However, this regulation would
not prohibit other children in the private school from deriving a benefit
that is incidental to the provision of the IDEA -funded special education
and related services to those parentally -placed private school children
with disabilities designated to receive services under I DEA. For
example, if consultation services are provided to a private school
teacher as a means of providing special education and related
services to a particular parentally- placed private school child with a
disability and that teacher uses the acquired skills in providing
education to other children, whatever benefit those other children
receive is incidental to the provision of special education and related
services and is not prohibited by 34 C.F.R § 300.141. In providing or
arranging for the provision of equitable services, LEAs should use
reasonable measures in assessing whether IDEA funds are being used
to benefit private schools.
Question O -4: May an LEA expend more than the amount of its IDEA Part B funds
designated to be spent on equitable service s for children with
disabilities placed by their parents in private schools?
Answer: Yes. As discussed in the response to Question D -3, nothing in the IDEA
prohibits an LEA from expending more than the proportionate amount
of IDEA Part B funds designated to be spent on equitable services.
Each LEA is required to spend a minimum amount of its subgrant under
IDEA Part B 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 referenced in Question
D -4 and provided in 34 C.F.R. § 300.133(d), State and local funds may
be used to supplement, but not supplant, the LEA’s proportionate
share of IDEA Part B funds required to be expended on children with
disabilities placed by their parents in private schools.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
46
Question O
-5: If an LEA does not expend the entire proportionate share of IDEA 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 C.F.R. § 300.133(a), each LEA is required to spend a minimum
amount of its subgrants under IDEA Part B on children with disabilities
placed by their parents in private, including religious, elementary and
secondary schools. As provided in 34 C.F.R. § 300.133(a)(3), if an LEA
has not expended all of the proportionate share funds 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 spend ing its
proportionate share to provide equitable services to children with
disabilities placed by their parents in private schools, because the
determination of the proportionate share was based on the prior
year’s child count for expenditure in the next subsequent fiscal year .
34 C.F.R. § 300.133(c)(2).
Question O -6: If an LEA does not expend its entire proportionate share of IDEA 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 chi ld find, consultation, and other requirements related to
parentally -placed private school children with disabilities in
34 C.F.R. §§ 300.129 through 300.144, the LEA may use the
unexpended funds — at the end of the period during which the funds
may be spen t on parentally -placed private school children — to pay
for other allowable IDEA 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 C.F.R. §§ 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
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
47
private school children, the LEA must return the funds to the
D
epartment.
The SEA is responsible for ensuring that LEAs comply with these
requirements. See 34 C.F.R. §§ 300.149(a) and 300.600(b)(2) . If an LEA
has not expended the proportio nate 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 C.F.R. § 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 O -7: Does the number of parentall y-placed private school children with
disabilities who receive equitable services impact the amount of a
State or LEA’s allocation of IDEA Part B funds ?
Answer: No. IDEA Part B funds are allocated to States and LEAs using a statutory
formula that is not based on a child count . Therefore, the amount of
Part B funds allocated to States and LEAs cannot be adjusted based
on the number of private school children with disabilities receiving
equitable services.
Under the Grants to States and Preschool Grants for Children with
Disabilities programs, authorized by IDEA S ections 611 and 619,
respectively, IDEA Part B funds are allocated to States, and States must
distribute funds to eligible 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 C.F.R. §§ 300.703, 300.705, 300.807, and 300.816) . Each
LEA calculates the proportion ate share it must spend on parentally -
placed private school children with disabilities based on the LEA’s
subgrant.
It should be noted that adjustments in State funding could be made
depending on each State’s laws and funding mechanisms.
Question O -8: Are States required to monitor an LEA’s expenditures of IDEA Part B
funds to meet the requirements for equitable services?
Answer: Yes. As required by 34 C.F.R. §§ 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
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48
expend the proportionate share of IDEA Part B funds on providing
special education and related services to parentally
-placed private
school children with disabilities in accorda nce with 34 C.F.R. §§ 300.129
through 300.144.
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
49
P P ROPERTY , EQUIPMENT , AND SUPPLIES
Authority: The requirements for property, equipment, and supplies are found in
20 U.S.C. 1412(a)(10)(A)(vii)) and 34 C.F.R. § 300.144.
Question P -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 IDEA Part B program . The
public agency must ensure that equipment and supplies placed in a
private school are used only for IDEA 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 IDEA Part B purposes or if removal is necessary to
avoid unauthorized use of the equipment and supplies for other than
IDEA Part B purposes. See 34 C. F.R. § 300.144(b) -(d).
Question P -2: May IDEA Part B funds for equitable services be used for repairs, minor
remodeling, or construction of private school facilities?
Answer: No. IDEA Part B funds for equitable services may not be used for
repairs, minor remodeling, or construction of private school facilities.
See 34 C.F.R. § 300.144(e).
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
50
Q D ISPUTE R ESOLUTION : STATE C OMPLAINTS , M EDIATION , AND
D UE P ROCESS C OMPLAINTS
Authority: The requirements for the IDEA dispute resolution procedures
applicable to children with disabilities placed in private schools by
their parents are found in 20 U.S.C. 1412(a)(10)(A) and
34 C.F.R. § 300.140.
Question Q -1: Under what circumstances does IDEA permit parents of parentally -
placed private school children with disabilities to us e IDEA’s due
process procedures?
Answer: As provided in 34 C.F.R. § 300.140(b), a parent who has enrolled his or
her child in a private school has the right to file a due process
complaint to request a due process hearing regarding the child find
requirem ents in 34 C.F.R. § 300.131, including the requirements in
34 C.F.R. §§ 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 provisi ons in
S ection 615 of the Act and 34 C.F.R. §§ 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 a disability.
Disputes that arise between LEA s where private schools are located
and parents about equitable services are, however, properly subject
to the State complaint procedures in 34 C.F.R. §§ 300.151 through
300.153. As provided in 34 C.F.R. § 300.140(c), a parent may file a
signed written com plaint in accordance with the State complaint
procedures alleging that an SEA or LEA has failed to meet IDEA’s
equitable services requirements, such as the LEA’s failure to properly
conduct the consultation process.
Q uestion Q -2: Under what circumstances does IDEA require that mediation be made
available to parents of parentally -placed private school children with
disabilities?
Answer: As provided in 34 C.F.R. § 300.140(b), a parent of a child enrolled by a
parent in a private school has the right to fil e a due process complaint
to request a due process hearing and to use the mediation
procedures in 34 C.F.R. § 300.506 regarding the child find requirements
in 34 C.F.R. § 300.131, including the requirements in 34 C.F.R. §§ 300.300
through 300.311 . The due process provisions in S ection 615 of the Act
and 34 C.F.R. §§ 300.504 through 300.519 of the regulations , which
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
51
include the mediation procedures in 34
C.F.R. § 300.506, 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 . 34 C.F.R. § 300.140(a).
Disputes that arise about equitable services are, however, properly
subject to the State complaint procedures in 34 C.F.R. §§ 300.151
through 300.153 . As provided in 34 C.F.R. § 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 IDEA’s
equitable services requirements. Under the State complaint
procedures, when a parent files a State complaint regarding IDEA’s
equitable services requirements, including the child find requirements
in 34 C.F.R. § 300.131, which include the requirements in
34 C.F.R. §§ 300.300 through 300.311, the SEA must give the parent an
opportunity to voluntarily engage in mediation consistent with
34 C.F.R. § 300.506. 34 C.F.R. § 300.152(a)(3)(ii).
Question Q -3: Do private school officials have the right to file a complaint under the
State complaint provisions in 34 C.F.R. §§ 300.151 through 300.153?
Answer: Yes. A private school official may file a State co mplaint regarding an
alleged violation by a public agency of any requirement of Part B of
IDEA or its implementing regulations by using the procedures in
34 C.F.R. §§ 300.151 through 300.153. Under those procedures, the SEA
must resolve any complaint, incl uding a complaint filed by an
organization or individual from another State, that meets the
requirements of 34 C.F.R. § 300.153. See also Question A -15.
Question Q -4: 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 C.F.R. § 300.140(c), any complaint alleging that an SEA or LEA
has failed to meet the requirements in 34 C.F.R. §§ 300.132 through
300.135 and 300.137 through 3 00.144 must be filed in accordance with
the State complaint procedures described in 34 C.F.R. §§ 300.151
through 300.153 . In resolving such a complaint, if the SEA determines
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN PRIVATE SCHOOLS
52
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
C.F.R. §§ 300.129 through 300.144.
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 IDEA Part B funds, beyond the minimum
amount required under 34 C.F.R. § 300.133(a), to pay for
compensatory services for a parentally -placed private school child
with a disab ility. However, under 34 C.F.R. § 300.133(d), State and local
funds may supplement, but not supplant, the proportionate amount of
IDEA Part B funds required to be expended for parentally -placed
private school children with disabilities . The use of State an d 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 C.F.R. § 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 IDEA Part B funds in determining what services
will be provided in order to ensure an LEA has sufficient IDEA Part B
funds to implement the services plan for each parentally -placed child
with a disability who has been designated to receive services.
Summary
We invite you to submit comments on this proposed guidance: Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools. This Q&A document updates and supersedes the Department’s guidance, titled Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools issued in April 2011.
The public comment period on this document ends January 21, 2021. To comment, please visit https://www.federalregister.gov/d/2020-27872.
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Last modified on January 12, 2021