Serving Parentally-Placed Private School Students
with Disabilities in Public Schools

By Andrea L. Mooney, Shareholder

Eichelbaum Wardell Hansen Powell & Mehl, P.C.

It is sometimes unclear what a public school district’s duty is when it comes to serving children with disabilities placed by their parents in private schools. Further complicating matters is the fact that sometimes a private school student requesting services can reside in the boundaries of one district and attend a private school in the boundaries of another district.  What follows is a simplified list of steps to follow, and an explanation of each step, when evaluating a district’s responsibility to a private school student.

  1. Determine in which school district the student resides and in which school district the private school is located.

Sometimes, a student may attend a private school which is in the geographical boundaries of a school district other than the student’s public school district of residence. It is the school district where the private school is located which has child find obligations to the student, including evaluation. This may also include providing an Independent Educational Evaluation (IEE) if the parents disagree with the evaluation conducted by the district. The Texas Administrative Code also requires that an Admission, Review and Dismissal (ARD) committee meet to consider a free, appropriate, public education (FAPE) if a private school student is referred for special education services.  However, if the parents make clear their intention to keep their child enrolled in a private school, the district need not develop an Individualized Education Program (IEP) for that student. At that point, besides offering evaluation, the district where the private school is located would have a duty to consult with the private school and parents to develop what is called a services plan for the student.  This is not a one-time consultation; rather, consultation must be an ongoing discussion throughout the entire school year, and the district must provide proof of compliance with this requirement, as discussed below. The district where the private school is located must first obtain the parent’s consent to communicate with any outside entity, including the private school the student attends and any public school district the student has attended in the past.

It is important to note that if a student resides in a different district than the private school is located, the district where the student resides is not completely absolved of responsibility.  The Office of Special Education and Rehabilitative Services (OSERS) has recognized that a student often will leave a private school and return to his or her district of residence. Also, a student enrolling in a private school often has been recently withdrawn from a public school in his or her district of residence, and the district of residence therefore has the most recent data about the student’s needs. For these reasons, OSERS guidance indicates that a student’s district of residence should collaborate with the parents of a private school student about appropriate services for the student. Again, the district of residence must seek the parent’s consent before collaborating with the private school, the district where the private school is located, and any other outside entity.

2.        The school district in which the private school is located should address all required topics when consulting with the parents and the private school.

        According to 34 C.F.R. § 300.134, consultation must address the following:

3.        The school district in which the private school is located must develop a         services plan for the private school student in consultation with the private school and the parents.

The school district should convene an ARD with a representative from the private school and the parents present.  If the district of residence and the district where the private school is located are the same, the district should first determine if it can offer a student FAPE should the student attend school in the district. This is significant because if the ARD committee finds that the district can provide a student FAPE on site, the district could later use this evidence to controvert possible future claims from the parents for reimbursement for private placement.  

After an ARD committee finds that the student can receive FAPE at the public school, if the parents make it clear that they nevertheless intend for the student to attend the private school, the district is still required to expend the proportionate share of federal Individuals with Disabilities Education Act (IDEA) funds to provide special education and related services to eligible parentally-placed children with disabilities in what is called a “services plan.” Services may be provided directly by the district or by a contract with a third party. The services plan describes the specific special education and/or related services that the district will provide to the child (and may include transportation from the home or private school to and from the service site). Again, the district must ensure that a representative of the private school attends each meeting to develop the services plan. A services plan should reflect only the services the district will provide to the student who is designated to receive services. Although the district is not required to develop a full IEP if the parents intend to keep the student in private school, the services plan must, to the extent appropriate, meet the applicable IEP content requirements. The services plan also must, to the extent appropriate, be developed, reviewed, and revised consistent with the requirements related to the ARD committee, parent participation, and when IEPs must be in effect, as specified in the IDEA.

4.        The school district in which the private school is located should obtain a signed, written statement from the private school representatives to demonstrate consultation occurred.

The statement must be signed and written to demonstrate compliance. Attendance sign-in sheets are not sufficient documentation.  Remember, the private school must affirm that the school district engaged in timely, meaningful consultation with the private school throughout the school year.

5.        A private school is entitled to file a complaint against the public school district.

An appeal to TEA is available should a private school feel that consultation with the public school district has not occurred in a timely or meaningful manner or that the district has not given due consideration to the private school’s recommendations.  If the private school is not satisfied with the response from TEA, it may submit a complaint to the U.S. Secretary of Education.

In summary, the public school district in which a private school is located must be able to demonstrate that it worked in partnership with parents and the private school so that private school students can receive the benefits available to them under the IDEA.

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