Information Update Bulletin 99.07

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September 1999

TO: District Administrators, CESA Administrators, CCDEB Administrators, Directors of Special Education and Pupil Services, and Other Interested Parties
FROM:Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy
SUBJECT: Parentally-Placed Private School Children with Disabilities

The Department of Public Instruction (DPI) has prepared this bulletin to address common questions about local educational agency (LEA) responsibilities under the Individuals with Disabilities Education Act (IDEA) to children with disabilities placed in private schools by their parents. This bulletin does not address the responsibilities of an LEA for a child placed by the agency in a private school. This bulletin replaces bulletins 92.7, 94.7, and 98.01.

1. What are the requirements for "child find" as they pertain to parentally-placed private school children?
2. Must an LEA provide services to parentally-placed private school children with disabilities?
3. Do the IDEA requirements relating to parentally-placed private school children apply to children attending private schools outside the boundaries of the LEA?
4. Do the IDEA requirements relating to parentally-placed private school children apply to children in home-based private educational programs?
5. How does the LEA determine the number of children with disabilities used to calculate its minimum required expenditure?
6. What amount must an LEA spend on special education and related services for parentally-placed private school children with disabilities?
7. Must an LEA spend IDEA funds in order to meet the minimum required expenditures for parentally-placed private school children with disabilities?
8. What expenditures can be considered when determining whether an LEA has met the minimum expenditure requirements?
9. Once an LEA has satisfied the minimum expenditure requirements, is the LEA obligated to provide services to newly-identified private school children with a disabilities?
10. How does an LEA make decisions about the special education and related services it will provide to parentally-placed private school children with disabilities?
11. When must the LEA consult with appropriate representatives of private school children with disabilities?
12. Who makes the final decisions concerning services for private school children with disabilities?
13. Are there precautions an LEA must observe when providing special education services to religious school children?
14. May LEAs provide special education and/or related services to private school children at private schools?
15. Where does the LEA document its decisions about services for parentally-placed children with disabilities?
16. Is an LEA required to re-evaluate parentally-placed private school children with disabilities?
17. Must an LEA offer FAPE to a parentally-placed private school child?
18. May an LEA provide a parentally-placed private school child related services without providing the child special education?
19. Is an LEA required to provide transportation to a private school child with a disability when the child needs the transportation to receive the services?
20. What is a services plan?
21. How does an LEA develop a "services plan?"
22. Must a private school teacher participate in developing, reviewing and revising a child’s services plan?
23. Must the team that developed the services plan decide the site at which the child will receive services?
24. Do parental notice and consent requirements apply to the provision of special education services under a services plan?
25. If an LEA fails to implement the requirements relating to parentally-placed private school children with disabilities, may a parent file a state IDEA complaint?
26. May the parents of a parentally-placed private school child request mediation or a due process hearing?

  1. What are the requirements for "child find" as they pertain to parentally-placed private school children?

    Each local educational agency must conduct activities to locate, identify and evaluate all children with disabilities within its jurisdiction, regardless of the severity of their disability, aged birth through 21. These activities are known as "child find." The child find requirement includes private school children, including those in religious schools. Child find activities for private school children with disabilities must be comparable to those for children with disabilities in public schools. Each LEA must consult with appropriate representatives of private school children with disabilities on how to carry out private school child find activities.

  2. Must an LEA provide services to parentally-placed private school children with disabilities?

    An LEA must arrange for parentally-placed private school children with disabilities to participate in the LEA’s special education services. However, no private school child with a disability has an individual right to receive some or all of the services that the child would receive if enrolled in a public school. The IDEA requires that annually an LEA spend certain minimum amounts of funds on special education and related services for private school children with disabilities aged three through 21 and for children aged 3 through 5 (see question 6). The expenditures must be consistent with the other requirements of the IDEA regulations. Whether to spend more than the minimum amount is a local decision.

  3. Do the IDEA requirements relating to parentally-placed private school children apply to children attending private schools outside the boundaries of the LEA?

    Yes. It is the child’s residence that creates the duty under the IDEA regulations, not where the private school is located. The IDEA requirements relating to parentally-placed private school children with disabilities apply to resident children attending private schools outside the LEA’s boundaries and those attending outside of the state.

  4. Do the IDEA requirements relating to parentally-placed private school children apply to children in home-based private educational programs?

    No. These requirements apply only to children attending private schools. Under Wisconsin law a home-based private educational program is not a private school. Therefore, the IDEA requirements relating to parentally-placed private school children do not apply to children in home-based private educational programs.

  5. How does the LEA determine the number of children with disabilities used to calculate its minimum required expenditure?

    On December 1 of each year, the LEA must count the number of resident private school children with disabilities under the IDEA. The count includes both children who receive LEA special education and/or related services and those who do not. The LEA must consult with representatives of private school children about how to conduct the annual count. The count of private school children is used to determine the required expenditure for the next subsequent fiscal year.

  6. What amount must an LEA spend on special education and related services for parentally-placed private school children with disabilities?

    Two calculations are required to determine the minimum amount an LEA must spend on services for private school children - one for the LEA’s flow-through allocation, another for the LEA’s preschool allocation.

    To calculate an LEA’s minimum amount for its IDEA flow-through allocation, two numbers are needed. The first is the number of resident private school children with disabilities aged 3 through 21 on December 1. This number is not the number of children from the LEA’s December 1 IDEA child count reported to the DPI. The first number for the calculation includes both children receiving services and those not receiving services. The second number is the total number of resident children with disabilities aged 3-21, both public and private. The second number for the calculation includes all children with disabilities, both in public and private schools, receiving LEA services and those not receiving LEA services.

    To determine the LEA’s minimum required expenditure for the LEA’s flow-through allocation, first divide the number of resident private school children aged 3-21 (both served and not served) by the total number of resident children with disabilities aged 3-21, both public and private. This calculation yields a decimal. Then multiply the LEA’s total IDEA flow-through allocation by the decimal to find the minimum required expenditure.

    For example, an LEA has the following numbers of children:

    Private school children with disabilities 3-21
    Receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Not receiving LEA services . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .  4
    Subtotal - all private school children with disabilities . . . . . . 10


    Public school children with disabilities 3-21
    Receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
    Not receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . .      4
    Subtotal - all public school children with disabilities . . . . . . 190


    Grand total - children with disabilities 3-21 . . . . . . . . . . . . . . . . 200

    LEA IDEA flow-through allocation . . . . . . . . . . . . . . . $100,000

    The calculation of the minimum required expenditure is:

    10 x 100,000 or .05 x 100,000 = $5,000
    200

    The minimum required expenditure for an LEA’s preschool allocation is determined in a similar manner. Two numbers are needed. The first is the number of resident private children with disabilities aged 3 through 5 on December 1. This number is not the number of children from the LEA’s December 1 IDEA child count reported to the DPI. This number includes both children receiving services and those not receiving services. The second number is the total number of resident children with disabilities aged 3-5, public and private. This number is not the number of eligible children aged 3-5 from the LEA’s December 1 IDEA child count reported to the DPI. The second number for the calculation is the total number of children with disabilities aged 3-5, in both public and private schools, receiving LEA services and not receiving LEA services.

    To determine the LEA’s minimum required expenditure for its preschool allocation, first divide the number of resident private school children aged 3-5 (both served and not served) by the total number of resident children with disabilities aged 3-5, both public and private. This calculation yields a decimal. Then multiply the LEA’s total IDEA preschool allocation by the decimal to find the minimum required expenditure.

    For example, an LEA has the following numbers of children:

    Private school children with disabilities 3-5
    Receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    Not receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Subtotal - all private school children with disabilities . . . . . . 5

    Public school children with disabilities 3-5
    Receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
    Not receiving LEA services . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   4
    Subtotal - all public school children with disabilities. . . . . . . 35

    Grand total - children with disabilities 3-5 . . . . . . . . . . . . . . . . . . 40

    LEA IDEA preschool allocation . . . . . . . . . . . . . $24,000

    The calculation of the minimum required expenditure is:

    5 x 24,000 or .125 x 24,000 = $3,000
    40

  7. Must an LEA spend IDEA funds in order to meet the minimum required expenditures for parentally-placed private school children with disabilities?

    No. The IDEA regulations do not require that IDEA funds be used to satisfy this obligation. If an LEA uses other funds to provide special education and/or related services to private school children with disabilities, those funds can be used to satisfy the requirements, as long as the services are provided in accordance with the other provisions of the regulations.

  8. What expenditures can be considered when determining whether an LEA has met the minimum expenditure requirements?

    Expenditures for special education and related services, including transportation, provided consistent with children’s services plans can be considered when determining whether the LEA has met its obligation. Expenditures for child find activities, including evaluations, may not be considered.

  9. Once an LEA has satisfied the minimum expenditure requirements, is the LEA obligated to provide services to newly-identified private school children with a disabilities?

    No. Parentally-placed private school children with disabilities have no individual right to receive the special education and related services they would receive in the public school. Once the LEA has satisfied the minimum expenditure requirements, consistent with the IDEA regulations, it is not required to serve other private school children, including newly-identified children. Although the LEA is not required to serve these children, the law does not prohibit serving them. Whether to serve them is a local decision.

  10. How does an LEA make decisions about the special education and related services it will provide to parentally-placed private school children with disabilities??

    The LEA must consult in a timely and meaningful way with appropriate representatives of private school children in light of the funding available for parentally-placed private school children with disabilities, their number, needs and location. The LEA must give the representatives a genuine opportunity to express their views about which children will receive services; what services will be provided; how and where the services will be provided; and how the services provided will be evaluated. One way to satisfy this requirement is to consult with appropriate representatives of private schools within the LEA’s boundaries and outside the LEA’s boundaries that are attended by LEA resident children.

  11. When must the LEA consult with appropriate representatives of private school children with disabilities?

    The IDEA regulations do not require annual consultation. Consultation must occur before the LEA makes any decision affecting the opportunities of private school children with disabilities to participate in the LEA’s special education and/or related services.

  12. Who makes the final decisions concerning services for private school children with disabilities?

    While the LEA must consult with representatives of parentally-placed private school children with disabilities, the LEA makes the final decisions with respect to the special education and/or related services that will be provided.

  13. Are there precautions an LEA must observe when providing special education services to religious school children?

    Yes. The LEA’s services must be secular, neutral and non-ideological. The services may not supplant the private school’s instruction in the core curriculum areas of reading, language arts, mathematics, social studies, science, and health. The safeguards found in the IDEA regulations at 34 CFR 300.458 through 300.462 must be observed.

  14. May LEAs provide special education and/or related services to private school children at private schools?

    Yes. There is no federal or state constitutional prohibition on providing publicly-funded special education and related services in private, including religious schools. Decisions about where services will be provided are left to LEAs, in consultation with representatives of private school children. The safeguards described in question 13 (above) must be observed.

    LEAs may provide the services at private schools, but they are not required to do so. The department encourages LEAs to provide services at private schools to the extent that it is practical to do so. On-site services will minimize the need for transportation and the disruption to the educational program of the children receiving the services.

  15. Where does the LEA document its decisions about services for parentally-placed children with disabilities?

    Decisions about the special education and related services provided to private school children with disabilities are documented in section VI of the LEA’s Special Education Plan. The Special Education Plan is filed with the department and available for public inspection from the LEA or the department.

  16. Is an LEA required to re-evaluate parentally-placed private school children with disabilities?

    Yes. The law requires that all children with disabilities be re-evaluated at least once every 3 years. Therefore, an LEA must initiate a reevaluation of a private school child with a disability at least once every three years. If the LEA cannot complete the reevaluation because the child’s parents refuse to cooperate, the LEA is not required to take further action. The requirement to reevaluate includes private school children who are not receiving special education and related services from the LEA. Such children need to be re-evaluated to determine whether they continue to have a disability for the private school child count and funding purposes.

  17. Must an LEA offer FAPE to a parentally-placed private school child?

    After initially evaluating a child and determining that the child is eligible for special education, the LEA must inform the parents that the LEA will provide the child FAPE if the child is enrolled in the public school. The LEA also should explain to the parents what services are available to the child if the child remains in the private school. If the child remains in the private school and will receive services from the LEA, the LEA must develop a "services plan" for the child. The LEA would not develop an IEP and placement to provide FAPE, unless the parents want the child to receive a FAPE in the public school.

  18. May an LEA provide a parentally-placed private school child related services without providing the child special education?

    Yes. The IDEA regulations permit an LEA to provide for the participation of a private school child with a disability in any of the LEA’s special education services described in section VI of the LEA’s Special Education Plan. Therefore, the LEA may provide related services to a private school child with a disability without providing special education.

  19. Is an LEA required to provide transportation to a private school child with a disability when the child needs the transportation to receive the services?

    Yes. The law requires LEAs to provide transportation if it is necessary for a private school child to benefit from or participate in special education and related services. The cost of providing such transportation may be included in determining whether an LEA has met the minimum expenditure requirements for private school children.

  20. What is a services plan?

    A services plan describes the special education and/or related services the child will receive from the LEA. The services must be provided by personnel meeting the same standards as personnel providing services in the public school. The services plan describes the specific special education and/or related services to be provided to the child in light of the services the LEA has determined will be available to private school children with disabilities. To the extent appropriate, the services plan includes IEP elements at section 34 CFR 300.347. The elements in each child’s services plan may vary depending on the services to be provided. Many children’s services plans will include-

    • the child’s present level of educational performance;
    • annual goals, including benchmarks or short-term objectives;
    • a statement of the special education, related services, or supplementary aids and services;
    • a statement of the program modifications or supports;
    • an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular education environment;
    • the projected date for the beginning of the services and modifications, and the amount, anticipated frequency, location and duration of the services and modifications; and
    • a statement of how the child’s progress toward the annual goals will be measured and how the parents will be regularly informed of their child’s progress and the extent to which the progress is sufficient to enable the child to achieve the goals by the end of the year.

    Other IEP elements at 34 CFR 300.347 may be included, depending on the services the LEA will provide to the child, e.g., transition services.

  21. How does an LEA develop a "services plan?"?

    To the extent appropriate, an LEA must follow the requirements for IEPs when developing, reviewing and revising a child’s services plan. These requirements include when an IEP must be in effect; IEP meetings; IEP team; parent participation, including notification of the meeting; and development, review and revision of an IEP (34 CFR 300.342-346).

  22. Must a private school teacher participate in developing, reviewing and revising a child’s services plan?

    A meeting to develop, review and revise a services plan must include all of the participants required for an IEP team meeting, including at least one regular education teacher of the child (if the child is or may be participating in the regular education environment). Including the child’s private school regular education teacher would meet the regular education teacher participation requirement.

    An LEA must also ensure that a representative of the private school attends each meeting to develop or revise a child’s services plan. If the representative cannot attend, the LEA must use other methods to assure a representative’s participation, including individual or conference telephone calls. The participation of the child’s private school teacher could meet this requirement.

  23. Must the team that developed the services plan decide the site at which the child will receive services?

    No. The sites where services for private school children are provided are determined by the LEA in consultation with representatives of private school children. This information is found in section VI of the LEA’s Special Education Plan. LEA staff may assign a private school child to a site for the provision of services, consistent with the LEA’s Special Education Plan and the child’s services plan.

  24. Do parental notice and consent requirements apply to the provision of special education services under a services plan?

    The department believes that the IDEA requirements relating to notice and consent with regard to services plans are open to more than one interpretation. Therefore, the department has requested a clarification from the U.S. Department of Education. When the department receives a clarification from the U.S. Department of Education, we will communicate it to LEAs and other interested parties. Until then LEAs may wish to give parents prior written notice when the LEA proposes or refuses to initiate or change the provision of services under a services plan. In cases where the LEA’s first provision of special education is under a services plan, the LEA also may wish to obtain informed consent from the child’s parents.

  25. If an LEA fails to implement the requirements relating to parentally-placed private school children with disabilities, may a parent file a state IDEA complaint?

    Yes. Any individual or group may file a state IDEA complaint that an LEA or DPI has failed to meet any of the legal requirements regarding children with disabilities enrolled by their parents in private schools. The complaint must be in writing and signed. It must allege a violation of special education law and include the facts upon which the allegation is based. Generally, the complaint must be filed within one year of the alleged violation.

  26. May the parents of a parentally-placed private school child request mediation or a due process hearing?

    The parents of a private school child may request mediation or initiate a due process hearing under section 115.80, Wis. Stats., about matters relating to child find and their child’s evaluation and eligibility determination. Due process applies to child find and the child’s evaluation and eligibility determination because these requirements relate to the LEA’s obligation to make FAPE available to the child in the public school.

    Parents may not request mediation or a due process hearing about other matters relating to parentally-placed private school children, including the provision of services in the child’s services plan. Due process does not apply because there is no individual right to special education services for a child attending a private school.

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