The Rights of Children with Disabilities Enrolled By Their Parents in Private School

Numerous parents who unilaterally enrolled their children in private schools (including religious schools) have raised many questions regarding their children's rights under the new IDEA.   In response, I have drafted the following summary of recent Federal guidance on this subject.  This summary is general in nature and is not meant to provide specific legal advice.   This posting addresses only the changes to the provisions of IDEA 2004 that took effect on July 1, 2005 regarding children with disabilities who are enrolled by their parents in private schools.  The relevant IDEA provisions can be found at 20 U.S.C. § 1412 (10)(a).   This posting does not address a related set of issues regarding when a parent unilaterally places a child and then claims the offered program in school was not a FAPE.   That situation is subject to its own set of requirements, including notice to the school, which is a critical prerequisite not discussed here.

• In General -- 20 U.S.C. § 1412(10)(a)(i) defines the manner in which services are provided to children enrolled in private schools.  Amendments to the Act provide for children who are enrolled by their parents in private elementary and secondary schools, and the reauthorized portion of the law explicitly includes religious schools as eligible private schools.  As such, the statute provides that amounts to be expended for the provision of services to parentally placed private school children shall be equal to a proportionate amount of Federal funds made available under the subchapter.  State and local funds may supplement and must not supplant the proportional amount of federal funds expended.  The Act also requires that the local educational agency (LEA) maintain records on the number of privately placed children determined to have disabilities, as well as the number served.
• Child Find -- 20 U.S.C § 1412(10)(a)(ii) deals with equitable participation, activities, cost, and the completion period for the child find process.  The law provides that the child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and shall make an accurate count of such children.  Furthermore, in carrying out the Act, the LEA or state educational agency (SEA) shall undertake activities similar to those activities undertaken for the agency's public school children.  Cost may be considered when determining whether the LEA has met its obligations under 20 U.S.C. § 1412(10)(a)(i).
• Consultation --20 U.S.C. § 1412(10)(a)(iii) is a new provision that brings IDEA into conformity with the language in No Child Left Behind.  Pursuant to the law, in order to ensure timely and meaningful consultation, the LEA and/or SEA shall consult with private school representatives and the parents'/children's representatives during the design and development of special education and related services  regarding the following:
  • the child find process generally, including how parents, teachers and private school officials will be informed of the process, and how privately placed children can participate equitably;
  • the determination of the proportionate amount of Federal funds available to serve the children and how the amount was calculated;
  • the consultation process among the LEA, private school officials, and representatives of parents/children, including how children identified through the child find process can meaningfully participate in special education and related services;
  • how, where, and by whom special education and relates services will be provided for the children, including the types of services, direct services and alternate service delivery mechanisms, how services will be apportioned if funds are insufficient to serve all children, and how and when those decisions will be made; and
  • if the LEA disagrees with the views of private school official on the provision of services and the types of services (whether  provided directly or through a contract),  the LEA shall provide private school officials with a written explanation of the reasons why the LEA chose not to  provide services directly or through a contract.
• Written Affirmation -- 20 U.S.C. § 1412(10)(a)(iv)  provides for written affirmation after the part (iii) consultation has occurred; that is, the LEA shall obtain a written affirmation signed by the representatives of the participating private schools.  However, if the representatives do not provide such affirmation within a reasonable period of time, the LEA shall forward the documentation of the consultation process to the SEA.
• Compliance -- 20 U.S.C. § 1412(10)(a)(v) gives a private school official the right to submit a complaint to the SEA that the LEA did not engage in consultation that was meaningful and timely, or did did not give due consideration to the views of the private school official.  When submitting such complain, the official shall provide the basis of the noncompliance, and the LEA shall forward the appropriate documentation to the SEA.  If the private school official is dissatisfied with the decision of the SEA s/he may submit a complaint to the Secretary that provides the basis of the noncompliance.  The SEA, then, shall forward the appropriate documentation to the Secretary.
• Provision of Equitable Services -- 20 U.S.C. § 1412(10)(a)(vi) provides that the provision of services shall be provided by employees of a public agency or through contract by the agency with an individual, association, agency, organization or other entity.  The special education and related services provided (including materials and equipment) shall be secular, neutral and non-ideological.  A public agency shall have control of the funds to provide such services (including title to materials, equipment, and property purchased with those funds), and the public agency shall administer the funds and property.

Comments

[V.T.]

Where can I find information about unilaterally enrolled child in private school that is out of state; parents live in Ohio and child is in Utah. This is the only appropriate placement we could find due to needs for small/safe enviornment and theraputic services daily.

[Steve Myers]

When my 14 year old son acquired a disability, he was booted out of the private school that he was attending (solely on the basis of his disability). Why is it that chartered private schools in Ohio receive state subsidies, but can discriminate against disabled children? Is this legal?