PARENTALLY PLACED PRIVATE SCHOOL STUDENTS Wyoming Department of Education Special Programs Division April 2012

A Fundamental Right Undeniable truth: Children with disabilities eligible under the IDEA have the right to FAPE. Corresponding duty: FAPE must be made available by school district and public agencies in states receiving Federal IDEA dollars.

A Fundamental Right Undeniable truth: Parents have the right to choose whether their child attends a public school where FAPE must be made available, or a private school where the provision of FAPE may OR may not be the responsibility of the school district or public agency. The confusing part: There are two distinct ways in which parents may choose to place their child in a private school: One method alleviates a district of its responsibility to provide FAPE, and The other method may require the district to be responsible for the costs of the private school education.

Parent Choice Parents may exercise the choice to provide a private school education for their child. When the private school placement is the result of a parent exercising a choice rather than the result of dissatisfaction with the special education services provided by the district, then the parent is also choosing to forgo or waive the child’s right to FAPE. The Federal Regulations address Children With Disabilities Enrolled by Their Parents in Private Schools in 34 C.F.R. §§ through

Parentally-Placed Parentally-placed private school children with disabilities means children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school or secondary school. 34 C.F.R. § (FAPE is NOT at issue.) If a child is parentally-placed in a private school as a parental choice, not a special education dispute, then the child has no individual right to receive special education and related services. 34 C.F.R. § (a).

Parentally-Placed “No parentally-placed private school 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. § (a).

Private School Private schools must meet the definition of an elementary school (34 C.F.R. §300.13), or a secondary school (34 C.F.R. §300.36). Wyoming defines private school as any nonpublic, elementary or secondary school providing a basic academic educational program for children and may include a parochial and church or religious school and home-based educational programs. W.S. § ((a)(iii). Therefore, home-school must be treated as a private school in Wyoming.

Equitable Services What is the parentally-placed private school student entitled to receive from the district? LEA’s are required to expend the proportionate share of Federal IDEA funds to provide special education and related services to eligible parentally-placed children with disabilities. This includes direct services to children when made available as part of the equitable services plan. Provisions Related to Children With Disabilities Enrolled by Their Parents in Private Schools, USDE (2008).

Equitable Services Therefore, the type and amount of equitable services, as well as the service providers, are determined by the district, in consultation with private school representatives and parent representatives. It is based on the needs of the private school population in the aggregate, not the individual needs of a particular student.

Equitable Services The IDEA does not require an LEA to spend the proportionate share only for direct services. An LEA could determine, after timely and meaningful consultation, that it will provide its population of parentally-placed private school children with disabilities with indirect services. These services could include consultative services, equipment, material, or training for private school teachers or other private school personnel. See Q & A on Serving Children with Disabilities Placed by Their Parents in Private Schools, (OSEP 2011).

Consultation To ensure timely and meaningful consultation, an LEA must consult 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. 34 C.F.R. § Note: Evidence must exist of consultation between: Private school representatives; Parent representatives; and The LEA.

Consultation The consultation must address: 1. The child find process, including how parentally-placed private school children suspected of having a disability can participate equitably, and how parents, teachers, and private school officials will be informed of the process; 2. The determination of the proportionate share of Federal funds available to serve parentally-placed private school children with disabilities; 3. The consultation process between the LEA and private school, 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; and 4. How, where, and by whom special education and related services will be provided.

1. Child Find Each LEA must locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private, including religious, elementary and secondary schools located in the school district served by the LEA. 34 C.F.R. § (a). LEA Boundaries Private School

Child Find The child find process must be designed to ensure – The equitable participation of parentally-placed private school children; and An accurate count of those children. The activities and timelines for completion must be comparable to those for district students. The cost of child find, including any individual evaluations, MAY NOT be considered in determining the district’s proportional share. The child find activities MUST include children who live in another state but are attending private school within the district. 34 C.F.R. §

Reevaluations The LEA where the private schools are located is responsible for conducting reevaluations of children with disabilities enrolled by their parents in private elementary schools and secondary schools located within the district. Reevaluation is part of the LEA’s child find responsibility for parentally-placed private school children. 71 Federal Register

Reevaluations Question: What are the LEA’s responsibilities for reevaluations of parentally-placed children? Answer: The LEA where the private school is located is responsible for conducting reevaluations of children with disabilities enrolled by their parents in private school located in the LEA. Q & A on Serving Children with Disabilities Placed by Their Parents in Private Schools, (OSEP 2011). In other words, districts are responsible for ALL reevaluations for parentally-placed private school students within their boundaries.

2. Proportional Share Depending on the number of children with disabilities parentally-placed in private schools, each district must spend an amount that is the same proportion of federal dollars of parentally-placed students to the total number of children with disabilities served by the district. 34 C.F.R. §

Proportional Share Calculations The Formula:

Proportional Share Calculations How does a district know how many eligible private school children are within its boundaries? In calculating the proportionate amount of Federal funds to be provided for parentally-placed private school children with disabilities, the LEA, after timely and meaningful consultation, must conduct a thorough and complete child find process to determine the number of parentally-placed private school children with disabilities attending private schools located in the LEA. 34 C.F.R. § (b).

3. Consultation Process To ensure timely and meaningful consultation, an LEA must consult 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 regarding the following: (See 34 C.F.R. § ) Child find; Proportionate share funds; Consultation process; and Provision of special education and related service, including – The types of services, and How special education and related services will be apportioned if funds are insufficient to serve all parentally-placed private school children, and How and when those decisions will be made.

4. Equitable Service Determinations After meaningful consultation, who has the final say regarding services? The LEA must make the final decision with respect to the services to be provided to eligible parentally-placed private school children with disabilities. 34 C.F.R. § (b)(2).

Private School Services Plan If a child with a disability is enrolled in a religious or other private school by the child’s parents and will receive special education or related services from an LEA, the LEA must – Initiate and conduct meetings to develop, review, and revise a services plan for the child; and Ensure that a representative of the religious or other private school attends each meeting. 34 C.F.R. § (c).

Private School Services Plan Each parentally-placed private school child with a disability who has been designated to receive services must have a services plan that describes the specific special education and related services that the LEA will provide to the child in light of the services that the LEA has determined, through a consultation process, it will make available to parentally-placed private school children with disabilities. The services plan must be developed, reviewed, and revised utilizing procedures comparable to the IEP process. 34 C.F.R. §

Private School Services Plan Equitable services for a parentally-placed private school child with a disability must be provided in accordance with a services plan. A services plan must describe the specific special education and related services that will be provided to a parentally-placed child with disabilities designated to receive services. See Q & A on Serving Children with Disabilities Placed by Their Parents in Private Schools, (OSEP 2011).

Private School Services Plan Does the parent have the opportunity to participate in the development of a services plan? Yes. A service plan must, to the extent appropriate, be developed, reviewed, and revised consistent with IDEA’s IEP procedures... Given the emphasis on parent involvement in the IDEA, the Department believes that the parents should have the opportunity to participate in meetings to review and develop the services plan for their child. See Q & A on Serving Children with Disabilities Placed by Their Parents in Private Schools, (OSEP 2011).

Services Provided The provision of services - Must be by highly qualified teachers and providers. 34 C.F.R. § (a). Who are employees of a public agency, or Who are retained through contract with an individual, association, agency, or organization. 34 C.F.R. § (c)(1). Must be secular, neutral, and nonideological. 34 C.F.R. § (c)(2). Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools. 34 C.F.R. § (a)(2).

Transportation Although a district may be responsible for transporting students to receive equitable services if those services are provided at a site other than the private school (34 C.F.R. § (b)(1) and 71 Federal Register ), the district is NOT required to provide transportation to and from home to the private school (34 C.F.R. § (b)(1)(ii) and Letter to Luger and Weinberg, 112 LRP 9489 (OSEP 2011)).

If Challenged... If a parent or private school disagrees with the process or a services plan, a state complaint may be filed with WDE. A parent has no right to a due process hearing on matters involving parentally-placed private school students. 34 C.F.R. § WDE recently issued a complaint decision regarding a parentally-placed private school student. The district was found to be in compliance with Federal requirements.

A FAPE Dispute When parents exercise their right to choose a private school placement when FAPE is at issue, the rules and outcomes are substantively distinct. If a district fails to make FAPE available, and parents, after notice, enroll their child in a private school in order to seek adequate services, then the parents can seek reimbursement from the district. See 34 C.F.R. §

The “Risk” of a Unilateral Placement When a parent believes that a public educational placement is denying her child FAPE, the parent may choose to remove the child to a private placement. However, a parent who removes the child does so at "their own financial risk." W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23, 18 IDELR 1019 (9 th Cir. 1992). See also Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (U.S.1993). This means that a parent may have to pay in full for the cost of the private placement.

Parent Reimbursement A parent may seek district reimbursement for the private placement if: The educational program recommended by the IEP was inappropriate to meet the child's needs. The alternative placement or additional services selected by the parents were appropriate. Equitable factors weigh in favor of reimbursement. T.Y. v. New York City Dep't of Educ., 53 IDELR 69 (2 nd Cir. 2009), cert. denied, 110 LRP 28696, 130 S. Ct (2010).

Parent Reimbursement An LEA is not required to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. 34 C.F.R. § (a). Conversely, the requirement that reimbursement be denied when FAPE is made available would also suggest that reimbursement is proper when a district has failed to offer FAPE. Forest Grove Sch. Dist. v. T.A., 52 IDELR 151 (U.S. 2009).

Limits on Reimbursement The cost of reimbursement can be reduced or denied -- (1) If -- (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;

Limits on Reimbursement (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in 34 C.F.R. § (a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. 34 C.F.R. § (d).

Exceptions to Notice Requirement Courts may disregard the notice limitation when the district is in some way at fault for the parent's failure to provide the notice. The IDEA states that the cost of reimbursement – Must not be reduced or denied for failure to provide the notice if – The school prevented the parents from providing the notice; The parents had not received notice, pursuant to 34 C.F.R. § , of the notice requirement in 34 C.F.R. § (d)(1); or Compliance with paragraph 34 C.F.R. § (d)(1) would likely result in physical harm to the child; and May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if – The parents are not literate or cannot write in English; or Compliance with 34 C.F.R. § (d)(1) would likely result in serious emotional harm to the child.

Appropriate Private Placement In order to avoid tuition reimbursement, districts have argued that the private placement is improper. While the placement must be proper, to receive tuition reimbursement, parents need not show that the private placement furnishes every special service necessary to maximize potential. Frank G. v. Board of Educ. of Hyde Park Cent. Sch. Dist., 46 IDELR 33 (2 nd Cir. 2006), cert. denied, 552 U.S. 985, 109 LRP (2007). See also C.B. v. Garden Grove Unified Sch. Dist., 56 IDELR 121 (9 th Cir. 2011). Furthermore, the private placement does not need to meet state educational standards in order for the placement to be proper. Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (U.S. 1993).

Appropriate Private Placement The private placement does not need to meet the IDEA's LRE requirement in order to be proper. Once a district fails to develop an IEP that makes FAPE available, the proper private placement need only confer some educational benefit to the student. C.B. v. Special Sch. Dist. No. 1, 111 LRP (8 th Cir ); and Warren G. v. Cumberland County Sch. Dist., 31 IDELR 27 (3 rd Cir. 1999). A private placement is proper for reimbursement purposes even if it fails to offer every special service needed to maximize a child's potential. C.B. v. Garden Grove Unified Sch. Dist., 56 IDELR 121 (9 th Cir. 2011).

Relationship to Disability The 9 th Circuit Court of Appeals did not allow parents to recover tuition costs because of extenuating circumstances. The 9 th Circuit observed that although nothing in the IDEA requires that the private placement be the result of the student's disability, the evidence in this case supported a finding that the private placement was motivated by factors unrelated to the students disability. The Court then denied the tuition reimbursement request because the statements made on the private school application showed that the student's enrollment was unrelated to his disabilities. Forest Grove School District v. T.A., 56 IDELR 185 (9 th Cir. 2011).

In Closing... Any district with either private school or home schooled students within its boundaries needs to engage in the consultation process to determine equitable services. After timely and meaningful consultation, the district decides what equitable services, based on a proportional share of federal funds, shall be provided. The reasons for the parents’ decision to choose private school or home school are VERY important to the next-steps analysis.