Questions and Answers On Serving Children With Disabilities Placed by Their Parents at Private Schools

The obligation of states and local education agencies (LEAs) to children with disabilities enrolled by their parents in private elementary schools and secondary schools changed on July 1, 2005, the effective date of these provisions in the Individuals with Disabilities Education Improvement Act of 2004 (Act). Section 612(a)(10)(A)(i)(II) of the Act requires that the LEA, after timely and meaningful consultation with private school representatives, must conduct a thorough and complete child find process to determine the number of parentally-placed children with disabilities attending private schools located in the LEA [emphasis added]. In addition, section 612(a)(10)(A)(i) of the Act makes clear that the obligation to spend a proportionate amount to provide services to children with disabilities enrolled by their parents in private schools now refers to children enrolled by their parents in private elementary schools and secondary schools “in the school district served by a local education agency.” Because these are significant changes in policy, the Department issued a memorandum to all states on June 27, 2005, informing them of these changes. The purpose of the questions and answers below is to provide additional guidance to states and LEAs in complying with the requirements in Section 612(a)(10) of the Act. We anticipate posting additional questions and answers in the future regarding the responsibilities of states and LEAs to serve parentally placed private school children with disabilities.

The Department wants to stress that the following questions and answers do not address all the provisions in Section 612(a)(10) of the Act. States are bound by all the provisions in the Act and, until the final regulations are in effect, the existing regulations that are not inconsistent with the Act. If there is an inconsistency between the statutory provisions in the Act and the provisions in the current regulations (i.e., the 1999 regulations implementing the Individuals with Disabilities Education Act Amendments of 1997 (IDEA 97), the provisions in the Act would supersede those in the current regulations. In addition, the final regulations, which will specify an effective date, will supersede current regulations and any Departmental guidance pertaining to the Act provided prior to the effective date of the final regulations, including the guidance in the questions and answers that follow.

A. Consultation With Private School Representatives and Representatives of Parents of Parentally Placed Private School Children With Disabilities

Authority: The requirements for consultation are in Section 612(a)(10)(A)(i)(II) and 612(a)(10)(A)(iii) through (v) of the Act.

Question A-1: What is consultation?

Answer: Consultation involves discussions between the LEA, private school representatives, and representatives, as defined in the Act, of parents of parentally placed private school children with disabilities on key issues that affect the ability of eligible private school children with disabilities to participate equitably in federally funded special education and related services. (See more on the provision of equitable services in Part C of these questions and answers.) Effective consultation provides a genuine opportunity for all parties to express their views and to have those views considered by the LEA. 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 private school children with disabilities.

A unilateral offer of services by an LEA with no opportunity for discussion is not adequate consultation. Only after discussing key issues relating to the provision of special education and related services with all representatives should the LEA make its final decisions with respect to the services to be provided to eligible private school children with disabilities.

Question A-2: What must the consultation process include?

Answer: Section 612(a)(10)(A)(iii) of the Act provides that each LEA 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 parentally-placed private school children. The public agency must consult with private school representatives and representatives of parents of parentally placed private school children with disabilities. The consultation process must include the following:

• The child find process and how parentally placed private school children suspected of having a disability can participate 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, private school and of 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 such services will be apportioned if funds are insufficient to serve all children — and how and when these decisions will be made; and
• How, if the LEA representatives disagree 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 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.

Question A-3: What records on consultation must an LEA maintain?

Answer: When timely and meaningful consultation has occurred, the LEA must obtain a written affirmation signed by the representative of the participating private school. If the representatives do not provide the affirmation with a reasonable period of time, the LEA must forward the documentation of the consultation process to the state education agency (SEA).