A Brief Overview
- When a family chooses to enroll their student with disabilities in a private school, they have different rights. Those rights are summarized in this article and further explained by U.S. Department of Education guidance issued in February 2022.
- School districts are responsible to seek out and evaluate all students suspected of having disabilities impacting their education, including those who are home schooled or placed in private schools by their parents. That right is mandated by Child Find.
- Public schools are responsible to re-evaluate students eligible for services at least every 3 years and to include them in their “child count,” regardless of where they attend school and whether they receive any services.
- Upon recommendation by an IEP team, a school might place a student with specific needs into a private school in order to provide a Free Appropriate Public Education (FAPE). Private placement based on an IEP team process is different, and this article is not about those placements.
When a family chooses to enroll their student with disabilities in a private school, they have different rights. The vocabulary is also different. Here are some key terms:
- Equitable Services: Special education services provided to privately enrolled students. Equitable services are the responsibility of the public district where the student’s private school is located.
- Services Plan: The arrangement agreed upon by the private school, the public school, and the family. A Services Plan can include services at the private school, a public school, or somewhere else; transportation necessary to access services is generally the responsibility of the public district.
- Consultation: Federal law requires public school district staff to meet consistently with private school providers and parents/stakeholders in the community to discuss which services to prioritize for children with disabilities placed by their families into private schools in the area.
- Proportionate Share: Federal law requires public school districts to set aside funds to serve students with disabilities enrolled by their parents in private schools. The amount of the set-aside funds is determined through a calculation called “proportionate share.” Families/stakeholders can ask for specific details about the local requirements for proportionate share by attending a consultation (see above definition).
Evaluation rights are upheld
Like all children in the United States, students placed in private schools are protected in their right to be evaluated if there is reason to believe a disability condition might impact how they learn and participate in school.
That protection is mandated by Child Find, which is part of the federal Individuals with Disabilities Education Act (IDEA). A comprehensive evaluation determines whether a student is eligible for special education services because of a disability that impacts the student’s access to education to the extent that Specially Designed Instruction (SDI) is needed.
A parent has the right to request an Independent Educational Evaluation (IEE) at public district expense if they disagree with an evaluation conducted by the public district.
Private school students have an Equitable Services plan, not an IEP
If their parents choose to enroll them in private school, a student eligible for services under IDEA is not served through an Individualized Education Program (IEP). They instead are served through a plan for Equitable Services.
What those services provide depends on what the student needs, resources available, and priorities identified within the local community. They might include special education services in a specific area of learning and/or related services provided by a professional, such as an occupational, physical, or speech-language therapist.
What rights to parents have?
Federal law protects parents in their right to participate in the development of an Equitable Services plan. According to federal guidance (question E-3), “Given the emphasis on parent involvement in IDEA, the Department believes that parents should have the opportunity to participate in meetings to review and develop the services plan for their child.”
Parents have the right to file complaints if they disagree with the way services are provided. In Washington State, that process is called filing a Community Complaint. Other dispute resolution options are somewhat limited. For example, the right to file Due Process is limited to complaints related to Child Find. Mediation is offered only for complaints related to Child Find or a Community Complaint, and a family cannot demand compensatory services if a district has run out of proportionate share funds. Compensatory services are additional services provided when a student was available to receive services as written by a program or plan; however, the school failed to provide them.
Where services are provided depends on a range of circumstances. The U.S. Department of Education advises public school districts to serve students at their private schools. Here is language from the February 2022 guidance (Section F):
“The Department generally believes that, unless there is a compelling rationale for these services to be provided off-site, [Lead Education Agencies/public school districts] should provide services on-site, at the child’s private school, to not unduly disrupt the child’s educational experience.”
It’s possible that students with disabilities in private schools may not receive any special education services. One reason might be that their family doesn’t want them. In those situations, the local public district is still responsible to keep track of that student and include them in their records—called a “child count.” The district is also responsible to re-evaluate those students for eligibility at least every 3 years.
Not all needs must be met through Equitable Services
The public school district or “lead education agency/LEA” responsible for services to privately enrolled students is the LEA where the private school is located, not necessarily the district where the student lives. This includes situations where a student goes to school in another county, state, or even country (a Canadian student attending a U.S. private school, for example, may access Equitable Services).
The local district is not responsible to provide services that cost more than the funds they have available through their “proportionate share” formula. Another reason certain services are not provided may be that stakeholders in the community decide to prioritize certain services over others during their “consultation” process. For example, a consultation may result in a district choosing to fund speech/language services but not occupational therapy.
In summary, there is not a guarantee of equitable access to all aspects of school and learning within a voluntary private school placement.
Keep in mind that the word “equity” does not mean equal. In general, equity is provided when a person who needs assistance gets the help they need to access an opportunity that people who don’t have disabilities can access without that assistance. In the case of Equitable Services, the term suggests equity but does not guarantee equity.
Parentally placed private school students do not have IEPs or receive FAPE
Equity is guaranteed for public school students with disabilities who are eligible for IEPs. The public-school student’s IEP is designed to support their access to a Free Appropriate Public Education (FAPE). Equity and help that enables appropriate access to school are part of FAPE. So is an individualized education designed to enable progress appropriate in light of the child’s circumstances.
Private school students are not entitled to FAPE or its specific entitlements and protections.
What if a child attends a private school as part of their IEP placement?
This article is about IDEA protections for students who are placed in private schools by their parents/caregivers because of a family preference. Under different circumstances, a student might go to a private school because their IEP team decides they need to be there in order to receive a Free Appropriate Public Education (FAPE). Those students retain all of the rights of a public education student under special education law.
Reminder: A student placed in private school by their parents does not have an IEP and is not entitled to FAPE.
All students with disabilities have the right to accommodations
Private schools are required to provide accommodations to children who qualify for them under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). Examples might include a ramp for a child in a wheelchair, Braille texts or audible books, additional time or an alternative space for testing. Each school has a staff member assigned to support compliance with these federal requirements.
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