Illinois NonPublic Schools
Access to Special Education Services
This site lists the primary
sources
(statutes and regulations) allowing students who do not enroll at
public
schools to obtain special education servies, and links to commentary.
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March 2006: Update: The U.S. Department of Education issues
Guidance after the 2004 amendments
The statutory
revisions to the IDEA in
2004 significantly changed the obligation of states and local education
agencies (LEAs) to children with disabilities enrolled by their parents
in private elementary and secondary schools. While previously it was
the responsibility of the LEAs in which the parents resided to
conduct
child find and provide equitable services to these students, that
responsibility has now shifted to the LEAs in which the private schools
are located.
Questions and
Answers On
Serving Children With Disabilities Placed by Their Parents at Private
Schools
A series of questions and answers addressing the obligation, under IDEA
2004, of states and local education agencies to children with
disabilities enrolled by their parents in private elementary schools
and secondary schools. (March 2006)
 Word
(83K) | PDF
(144K)
Effect:
While most of private school requirements of IDEA remained the same,
the 2004 Amendments made two significant changes:
1) the responsible school district becomes the one in which
the private school sits.
2) private schools gain power to bring complaints if the LEA does
not offer sufficient services.
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For example:
Question
C-5: What is the process for developing a services
plan for a parentally placed private school child with a disability?
Answer: Each parentally placed private school child
with a disability who has been designated by the LEA in which the
private school is located to receive special education or related
services must have a services plan. The services plan describes the
specific special education or related services that the LEA will
provide to the child. The LEA must ensure that a representative of the
private school attends each meeting to develop the services plan and,
if the representative cannot attend, use other methods to ensure
participation by the private school, including individual or conference
telephone calls. This provides the opportunity for private school staff
to learn more about the child's strengths and needs.
Question C-6: What
is the difference between an individualized education program (IEP) and
a services plan?
Answer: Children with disabilities enrolled in public
schools or who are publicly-placed in private schools are entitled to a
free appropriate public education (FAPE) and must receive the full
range of services under Part B that are determined by the child’s IEP
team to be necessary to meet the child’s individual needs and provide
FAPE. The IEPs for these children generally will be more comprehensive
than the more limited services plans developed for parentally-placed
private school children with disabilities designated to receive
services. A services plan should reflect only the services offered to a
parentally placed private school child with a disability designated to
receive services and must, to the extent appropriate, meet the IEP
content requirements described in Section 614(d) of the Act, or, when
appropriate, for children aged three through five, the Individual
Family Services Plan (IFSP) requirements described in Section 636(d) of
the Act as to the services that are to be provided.
Question
F-2: Are home schooled children considered parentally
placed private school children?
Answer: Whether home schooled children with
disabilities are considered parentally placed private school children
with disabilities is determined by the state. If the state recognizes
home schools or home day care as private elementary schools and
secondary schools, children with disabilities in those home schools or
home day care must be treated in the same way as other parentally
placed private school children with disabilities.
New: Professor Mark C. Weber
essay:
REFLECTIONS ON THE
NEW INDIVIDUALS WITH
DISABILITIES EDUCATION IMPROVEMENT
ACT
2006 Florida Law Review; Mark C.
Weber ,
58 Fla. L. Rev. 8
Public school districts
must find and provide services to private school students with
disabilities
|
The new law does not
expand the amount of funding that must be spent on children with
disabilities placed by their parents in private schools, but it alters
the allocation requirements and strives to insure that funding actually
is provided. The fundamental duty is that the state educational agency
and local school districts must provide services to private school
children with disabilities consistent with the number and location of
those children in the state, and that districts must devote funding to
the education of the children in the amount of federal special
education money that is proportionate to the number of children
enrolled in private schools within the district. [cite to 20 U.S.C.
sec1412 (a)(10)] The school district has to employ a child-find
process, in consultation with private school representatives, to learn
the number of children with disabilities in private schools, so as to
determine the proportionate amount to allocate[cite to 20
U.S.C. sec1412 (a)(10)] The
allocations are to be proportionate to the number of private school
children going to private schools in the district, [cite to 20
U.S.C. sec1412 (a)(10)] not proportionate to the number of
private school students resident there, as the previous law
required. [cite to 20 U.S.C. sec1412 (a)(10)]
Beyond these basics,
IDEIA incorporates a number of provisions, specifically obligations to
consult with private school representatives about whom to serve and how
to serve them, that previously were found only in the Department of
Education regulations. [cite to 20 U.S.C. sec1412 (a)(10)] It then goes one step further by
requiring school districts to obtain a written affirmation that a
timely and meaningful consultation took place and by conferring on
private schools the ability to file complaints with the state
educational agency, and ultimately the United States Department of
Education, if they do not like what the school district offers their
students. [cite to 20 U.S.C.
sec1412 (a)(10)]
The new law does not
alter previous regulatory provisions establishing that children
eligible for special education who are placed in private school by
their parents for religious or other reasons lack an individual
entitlement to special education and related services, and that
the parents can exercise due process hearing rights only with respect
to complaints about failure to identify, locate, and evaluate their
children, not complaints about failure to serve them or to serve them
as fully as the parents would like.
[cite to 20 U.S.C. sec1412 (a)(10)]
Accordingly, the proposed regulations retain those provisions. [cite to 70 Fed. Reg. 35,846-47 (proposed June 21,
2005) (to be codified at 34 C.F.R. §§ 300.137(a) (no
individual right to services), 300.140(a) (no due process rights))*
The
departure from previous law and practice, then, is the congressional
addition of an exclamation point to the old regulatory provisions, by
writing them into the statute and strengthening the procedural
obligations placed on school districts.
* 34 C.F.R. § 300.454(a) (2004);
see K.R. v. Anderson Cmty. Sch. Corp.,
125 F.3d 1017, 1019 (7th Cir. 1997) ("[T]he [1997] Amendments [to the
federal special education law] unambiguously show that participating
states and localities have no obligation to spend their money to ensure
that disabled children who have chosen to enroll in private schools
will receive publicly funded special-education services generally
'comparable' to those provided to public-school children.").
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Page contents:
link to ISBE and OSEP memo
Zobrest-U.S. Supreme Court opinion
Illinois School Code re part time attendance
Illinois Special Ed Regulations re private schools
Federal Special Ed Regulations re private schools
No due process remedy for homeschoolers.
Court orders reimbursement to parent for her
services
Necessity of Parents' consent to a placement
Summary
- In the Federal case of TH v. Bd. Ed. Palatine (Illinois)
the
courts held that the home program was appropriate for the student with
disabilites. The District's program was not adequate to provide
an
appropriate education for him. The TH
decisions, including the due process hearing opinions (which have more
of the facts) can be found at DueProcessIllinois.org
- In the Attorney General opinion, link is below, the Attorney
General
opined
that it was legal to home school children with disabilities.
- Local School Districts are not required to give an IEP or supply
a
child
in private school the same education he or she would get if enrolled in
the public school --
- however, the School must seek out the child and enter into a
service
plan
to supply some services.
- Privately schooled children cannot use the due-process remedy for
contesting
an inadequate service plan. They can only file a complaint with
ISBE.
Whether a school district offered FAPE before the student left is
subject
to due process.
- The child can still get publicly-funded services even if the
private
school
is religious based (Zobrest and Illinois regulation).
- If the school cannot supply an adequate IEP, the school may be
required
to pay tuition of a private school that can supply an appropriate
education.
- If a parent requests part-time enrollment, the school would have
to
supply
an IEP.
- Parents must consent to a school-proposed placement.
| The law is constantly changing. Do not rely upon this
document as legal
advice |
Links
ISBE Special Education home: http://www.isbe.state.il.us/spec-ed/
NATional cHallenged Homeschoolers Associated Network www.NATHHAN.com
For Special Education generally see Wrightslaw.com
Communication on Parentally Placed
Private
School Children with Disabilities
This document contains both the ISBE and OSEP memoranda on districts'
responsiblities
to children with disabilites not enrolled in public schools and answers
most questions on the subject. (43 pages.)
It also states that the statutes imply that if the child enrolls as
a part-time student under section 14-6.01 (see below), the school must
provide an IEP.
http://www.isbe.state.il.us/spec-ed/PDF/ParentPlacementPrivate.pdf
New: July 25, 2006 updates: http://www.isbe.state.il.us/spec-ed/pdfs/guidance_06-2.pdf
This U.S. Supreme Court opinion states that
the U.S. Constitution does not bar a student in a private or parochial
school from receiving publicly-funded special education services:
ZOBREST
v. CATALINA FOOTHILLS SCH. DIST., 509 U.S. 1 (1993)
Summary: The Establishment Clause does not prevent
respondent
from furnishing a disabled child enrolled in a sectarian school with a
sign-language interpreter in order to facilitate his education.
Government
programs that neutrally provide benefits to a broad class of citizens
defined
without reference to religion are not readily subject to an
Establishment
Clause challenge just because sectarian institutions may also
receive
an attenuated financial benefit. Mueller v. Allen, 463 U.S. 388 ;
Witters
v. Washington Dept. of Services for Blind, 474 U.S. 481 . The same
reasoning
used in Mueller and Witters applies here. The service in this case
is
part of a general government program that distributes benefits
neutrally
to any child qualifying as disabled under the IDEA, without regard to
the
sectarian-nonsectarian, or public-nonpublic nature of the school the
child
attends. By according parents freedom to select a school of their
choice,
the statute ensures that a government-paid interpreter will be present
in a sectarian school only as a result of individual parents' private
decisions.
Since the IDEA creates no financial incentive for parents to choose a
sectarian
school, an interpreter's presence there cannot be attributed to state
decisionmaking.
The fact that a public employee will be physically present in a
sectarian
school does not by itself make this the same type of aid that was
disapproved
in Meek v. Pittenger, 421 U.S. 349 , and School Dist. of Grand Rapids
v.
Ball, 473 U.S. 373 . In those cases, the challenged programs gave
direct
grants of government aid - instructional equipment and material,
teachers,
and guidance counselors - which relieved sectarian schools of costs
they
otherwise would have borne in educating their students. Here, the child
is the primary beneficiary, and the school receives only an incidental
benefit. In addition, an interpreter, unlike a teacher or guidance
counselor,
neither adds to nor subtracts from the sectarian school's environment,
but merely interprets whatever material is presented to the class as a
whole. There is no absolute bar to the placing of a public employee in
a sectarian school. Pp. 8-14.
Illinois School Code
(105 ILCS 5/14-1.01 et seq.)
http://www.legis.state.il.us/ilcs/ch105/ch105act5articles/ch105act5Sub34.htm
Sec. 14-6.01. Powers and duties of school
boards.
.... Such school boards shall
accept
in part-time attendance children with disabilities of the types
described
in Sections 14-1.02 through 14-1.07 who are
enrolled
in nonpublic schools. .... Special
educational
services shall be provided to such
students
as soon as possible after the identification, evaluation
and
placement procedures provided in Section 14-8.02, but no later
than
the beginning of the next school semester following the
completion
of such procedures. Transportation for students in part
time
attendance shall be provided only if required in the
child's
individualized educational program on the basis of the
child's
disabling condition or as the special education
program location may require.
Sec. 14-7.02. Children
attending
private schools, public out-of-state
schools,
public school residential facilities or private special education
facilities. The General Assembly
recognizes
that non-public schools or special education facilities provide
an
important service in the educational system in Illinois.
If because of his or her disability the special
education program of a district is unable to meet the needs of a child
and the child attends a non-public school or special education
facility,
a public out-of-state school or a special education
facility
owned and operated by a county government unit that provides special
educational
services required by the child and is
in
compliance with the appropriate rules and
regulations of the State Superintendent
of
Education, the school district in which the child is a
resident
shall pay the actual cost of tuition for
special
education and related services provided during the regular school term
and during the summer school term if the
child'seducational
needs so require ...
Article 14 of the Illinois School Code has other provisions dealing
with Special Education.
Illinois Administrative Code, Title 23 Part
26
Special Education
Section 226.340 Nonpublic Placements by Parents
Except as provided in 34 CFR 300.403, a parent who elects to place a
child
in a nonpublic school or facility without the consent or referral of
the
local school district is not entitled to have the district pay for that
placement if the district made or attempted to make FAPE available to
the
child.
a) Disagreements between a parent and a school district
regarding
the district’s provision of an appropriate program for a particular
child
shall be resolved by means of the due process afforded pursuant to
Subpart
G of this Part.
b) No child who is placed into a nonpublic facility by his or her
parent(s)
without the consent or referral of the local school district has an
individual
right to receive the special education and related services that the
child
would receive if enrolled in the district. Instead, a district’s
services
to such children are subject to the provisions of Section 226.350 of
this
Part.
Section 226.350 Service to Children in Private Schools
a) To the extent consistent with their number and locations in the
State,
provision must be made by school districts for services to children
with
disabilities who have been enrolled in private schools by their
parents.
1) Each school district shall consult annually with
representatives
of private schools in light of the funding available for serving their
students, the number of such students, their needs, and their
respective
locations to decide:
A) Which children will receive services;
B) What services will be provided;
C) How the services will be provided; and
D) How the services provided will be evaluated.
2) Each school district shall give representatives of private schools a
genuine opportunity to express their views regarding each matter that
is
subject to the consultation requirements of this subsection (a).
3) The consultation required by this subsection (a) shall occur before
the school district makes any decision that affects the opportunities
of
private school children with disabilities to participate in services.
4) The school district shall make the final decisions with respect
to the services to be provided to eligible children who are enrolled in
private schools.
5) The school district shall maintain a written record of actions taken
in compliance with the requirements of this subsection (a).
b) The services provided by a school district to children with
disabilities
enrolled in private schools shall be comparable in quality to the
services
provided to
eligible children enrolled in the district. “Comparable in quality”
means provided by similarly qualified personnel.
1) Eligible students in private schools may receive a
different
amount of services than eligible children in public schools.
2) No individual child must receive a specific service or receive the
same amount of service the child would receive in a public school.
3) For any child served pursuant to this Section, the school district
shall develop a service plan that identifies the services that the
district
will provide to the child. The plan shall meet the requirements of
Section
226.230 of this Part and shall be developed, reviewed, and revised
consistent
with Sections 226.200, 226.210, 226.220, and 226.530 of this Part.
c) Services may be provided on site at a child's private school,
including
a religiously affiliated school, to the extent consistent with the
provisions
of IDEA (20 USC 1413(d)).
d) Transportation to and from a site other than the private school
shall be provided if necessary for a child to benefit from or
participate
in the services offered by the district at that site. This includes
transportation
from the service site to the private school or to the child’s home,
depending
upon the timing of services.
e) When a student receives services from a school district pursuant
to this Section, the procedural safeguards described in Subpart F of
this
Part shall be available only with respect to complaints that the
district
has failed to fulfill the requirements of this Section. The due process
requirements of Subpart G of this Part shall not apply.
top
Code of Federal Regulations
TITLE 34--EDUCATION
Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or
Referred
by Public Agencies
Contents:
300.400 Applicability of Sec. Sec.
300.400-300.402.
300.401 Responsibility of State educational agency.
300.402 Implementation by State educational agency.
300.403 Placement of children by parents if FAPE is
at
issue.
300.450 Definition of "private school children
with disabilities.''
300.451 Child find for private school children with
disabilities.
300.452 Provision of services--basic requirement.
300.453 Expenditures.
300.454 Services determined.
300.455 Services provided.
300.456 Location of services; transportation.
300.457 Complaints.
300.458 Separate classes prohibited.
300.459 Requirement that funds not benefit a private
school.
300.460 Use of public school personnel.
300.461 Use of private school personnel.
300.462 Requirements concerning property, equipment,
and supplies for
the benefit of private school children with disabilities.
Sec. 300.400 Applicability of Secs.
300.400-300.402.
Sections 300.401-300.402 apply only to children
with
disabilities
who are or have been placed in or referred to a private school or
facility by a public agency as a means of providing special education
and related services.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.401 Responsibility of State educational agency.
Each SEA shall ensure that a child with a
disability
who is placed
in or referred to a private school or facility by a public agency--
(a) Is provided special education and related
services--
(1) In conformance with an IEP that meets the
requirements
of
Secs. 300.340-300.350; and
(2) At no cost to the parents;
(b) Is provided an education that meets the
standards
that apply to
education provided by the SEA and LEAs (including the requirements
of
this part); and
(c) Has all of the rights of a child with a
disability
who is served
by a public agency.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.402 Implementation by State educational agency.
In implementing Sec. 300.401, the SEA shall--
(a) Monitor compliance through procedures such as
written reports,
on-site visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to
each private
school and facility to which a public agency has referred or placed
a
child with a disability; and
(c) Provide an opportunity for those private schools
and facilities
to participate in the development and revision of State standards that
apply to them.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by Their Parents in Private
Schools
When FAPE Is at Issue
Sec. 300.403 Placement of children by parents if FAPE is at
issue.
(a) General. This part does not require an
LEA
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. However, the public agency
[[Page
54]]
shall include that child in the population whose needs are addressed
consistent with Secs. 300.450-300.462.
(b) Disagreements about FAPE. Disagreements
between a parent and a
public agency regarding the availability of a program appropriate for
the child, and the question of financial responsibility, are subject
to
the due process procedures of Secs. 300.500-300.517.
(c) Reimbursement for private school placement.
If the parents of a
child with a disability, who previously received special education
and
related services under the authority of a public agency, enroll the
child in a private preschool, elementary, or secondary school without
the consent of or referral by the public agency, a court or a hearing
officer may require the agency to reimburse the parents for the cost
of
that enrollment if the court or hearing officer finds that the agency
had not made FAPE available to the child in a timely manner prior to
that enrollment and that the private placement is appropriate. A
parental placement may be found to be appropriate by a hearing officer
or a court even if it does not meet the State standards that apply
to
education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost
of reimbursement described
in paragraph (c) of this section may be reduced or denied--
(1) If--
(i) At the most recent IEP 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;
(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 Sec. 300.503(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.
(e) Exception. Notwithstanding the notice
requirement in paragraph
(d)(1) of this section, the cost of reimbursement may not be reduced
or
denied for failure to provide the notice if--
(1) The parent is illiterate and cannot write in
English;
(2) Compliance with paragraph (d)(1) of this section
would likely
result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing
the notice; or
(4) The parents had not received notice, pursuant
to section 615 of
the Act, of the notice requirement in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(C))
Children With Disabilities Enrolled by Their Parents in
Private Schools
Sec. 300.450 Definition of "private school children
with
disabilities.''
As used in this part, private school children
with
disabilities
means children with disabilities enrolled by their parents in private
schools or facilities other than children with disabilities covered
under Secs. 300.400-300.402.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.451 Child find for private school children with
disabilities.
(a) Each LEA shall locate, identify, and evaluate
all private school
children with disabilities, including religious-school children
residing
in the jurisdiction of the LEA, in accordance with Secs. 300.125 and
300.220. The activities undertaken to carry out this responsibility
for
private school children with disabilities must be comparable to
activities undertaken for children with disabilities in public schools.
(b) Each LEA shall consult with appropriate
representatives
of
private school children with disabilities on [[Page 55]]
how to carry out the activities described in paragraph (a) of this
section.
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.452 Provision of services--basic requirement.
(a) General. To the extent consistent with their
number and location
in the State, provision must be made for the participation of private
school children with disabilities in the program assisted or carried
out
under Part B of the Act by providing them with special education and
related services in accordance with Secs. 300.453-300.462.
(b) SEA Responsibility--services plan. Each SEA
shall ensure that,
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, a services plan is developed and implemented for each private
school child with a disability who has been designated to receive
special education and related services under this part.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.453 Expenditures.
(a) Formula. To meet the requirement of Sec.
300.452(a),
each LEA
must spend on providing special education and related services to
private school children with disabilities--
(1) For children aged 3 through 21, an amount that
is the same
proportion of the LEA's total subgrant under section 611(g) of the
Act
as the number of private school children with disabilities aged 3
through 21 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 21; and
(2) For children aged 3 through 5, an amount that
is the same
proportion of the LEA's total subgrant under section 619(g) of the
Act
as the number of private school children with disabilities aged 3
through 5 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 5.
(b) Child count. (1) Each LEA shall--
(i) Consult with representatives of private school
children in
deciding how to conduct the annual count of the number of private
school
children with disabilities; and
(ii) Ensure that the count is conducted on December
1 or the last
Friday of October of each year.
(2) The child count must be used to determine the
amount that the
LEA must spend on providing special education and related services
to
private school children with disabilities in the next subsequent fiscal
year.
(c) Expenditures for child find may not be
considered.
Expenditures
for child find activities described in Sec. 300.451 may not be
considered in determining whether the LEA has met the requirements
of
paragraph (a) of this section.
(d) Additional services permissible. State and local
educational
agencies are not prohibited from providing services to private school
children with disabilities in excess of those required by this part,
consistent with State law or local policy.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.454 Services determined.
(a) No individual right to special education and
related services.
(1) No 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.
(2) Decisions about the services that will be
provided
to private
school children with disabilities under Secs. 300.452-300.462, must
be
made in accordance with paragraphs (b), and (c) of this section.
(b) Consultation with representatives of private
school children
with disabilities. (1) General. Each LEA shall consult, in a timely
and
meaningful way, with appropriate representatives of private school
children with disabilities in light of the funding under Sec. 300.453,
the number of private school children with disabilities, the needs
of
private school children with disabilities, and their location to
decide--
(i) Which children will receive services under Sec.
300.452;
(ii) What services will be provided;
(iii) How and where the services will be provided;
and
(iv) How the services provided will be evaluated.
(2) Genuine opportunity. Each LEA shall give
appropriate
representatives [[Page 56]] of private school children with
disabilities
a genuine opportunity to
express their views regarding each matter that is subject to the
consultation requirements in this section.
(3) Timing. The consultation required by paragraph
(b)(1) of this
section must occur before the LEA makes any decision that affects the
opportunities of private school children with disabilities to
participate in services under Secs. 300.452-300.462.
(4) Decisions. The LEA shall make the final
decisions
with respect
to the services to be provided to eligible private school children.
(c) Services plan for each child served under Secs.
300.450-300.462.
If a child with a disability is enrolled in a religious or other
private
school and will receive special education or related services from
an
LEA, the LEA shall--
(1) Initiate and conduct meetings to develop,
review,
and revise a
services plan for the child, in accordance with Sec. 300.455(b); and
(2) Ensure that a representative of the religious
or other private
school attends each meeting. If the representative cannot attend, the
LEA shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.
(Authority: 1412(a)(10)(A))
Sec. 300.455 Services provided.
(a) General. (1) The services provided to private
school children
with disabilities must be provided by personnel meeting the same
standards as personnel providing services in the public schools.
(2) Private school children with disabilities may
receive a
different amount of services than children with disabilities in public
schools.
(3) No private school child with a disability is
entitled to any
service or to any amount of a service the child would receive if
enrolled in a public school.
(b) Services provided in accordance with a services
plan. (1) Each
private school child with a disability who has been designated to
receive services under Sec. 300.452 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 the process described in Secs. 300.453-300.454,
it
will make available to private school children with disabilities.
(2) The services plan must, to the extent
appropriate--
(i) Meet the requirements of Sec. 300.347, with
respect to the
services provided; and
(ii) Be developed, reviewed, and revised consistent
with
Secs. 300.342-300.346.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.456 Location of services; transportation.
(a) On-site. Services provided to private school
children with
disabilities may be provided on-site at a child's private school,
including a religious school, to the extent consistent with law.
(b) Transportation. (1) General. (i) If necessary
for the child to
benefit from or participate in the services provided under this part,
a
private school child with a disability must be provided
transportation--
(A) From the child's school or the child's home
to a site other than
the private school; and
(B) From the service site to the private school,
or to the child's
home, depending on the timing of the services.
(ii) LEAs are not required to provide transportation
from the
child's home to the private school.
(2) Cost of transportation. The cost of the
transportation
described
in paragraph (b)(1)(i) of this section may be included in calculating
whether the LEA has met the requirement of Sec. 300.453.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.457 Complaints.
(a) Due process inapplicable. The procedures in
Secs.
300.504-
300.515 do not apply to complaints that an LEA has failed to meet the
requirements of Secs. 300.452-300.462, including the provision of
services indicated on the child's services plan.
(b) Due process applicable. The procedures in Secs.
300.504-300.515
do apply to complaints that an LEA has failed to [[Page 57]]
meet the requirements of Sec. 300.451, including the requirements of
Secs. 300.530-300.543.
(c) State complaints. Complaints that an SEA or
LEA has failed to
meet the requirements of Secs. 300.451-300.462 may be filed under the
procedures in Secs. 300.660-300.662.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.458 Separate classes prohibited.
An LEA may not use funds available under section
611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the students if--
(a) The classes are at the same site; and
(b) The classes include students enrolled in public
schools and
students enrolled in private schools.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.459 Requirement that funds not benefit a private
school.
(a) An LEA may not use funds provided under
section
611 or 619 of
the Act to finance the existing level of instruction in a private
school
or to otherwise benefit the private school.
(b) The LEA shall use funds provided under Part
B of the Act to meet
the special education and related services needs of students enrolled
in
private schools, but not for--
(1) The needs of a private school; or
(2) The general needs of the students enrolled in
the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.460 Use of public school personnel.
An LEA may use funds available under sections 611
and 619 of the Act
to make public school personnel available in other than public
facilities--
(a) To the extent necessary to provide services
under Secs. 300.450-
300.462 for private school children with disabilities; and
(b) If those services are not normally provided
by the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.461 Use of private school personnel.
An LEA may use funds available under section 611
or 619 of the Act
to pay for the services of an employee of a private school to provide
services under Secs. 300.450-300.462 if--
(a) The employee performs the services outside of
his or her regular
hours of duty; and
(b) The employee performs the services under public
supervision and
control.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.462 Requirements concerning property, equipment, and
supplies
for the benefit
of private school children with disabilities.
(a) A public agency must keep title to and
exercise
continuing
administrative control of all property, equipment, and supplies that
the
public agency acquires with funds under section 611 or 619 of the Act
for the benefit of private school children with disabilities.
(b) The public agency may place equipment and
supplies
in a private
school for the period of time needed for the program.
(c) The public agency shall ensure that the
equipment
and supplies
placed in a private school--
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without
remodeling the
private school facility.
(d) The public agency shall remove equipment and
supplies from a
private school if--
(1) The equipment and supplies are no longer needed
for Part B
purposes; or
(2) Removal is necessary to avoid unauthorized use
of the equipment
and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used
for repairs, minor
remodeling, or construction of private school facilities.
(Authority: 20 U.S.C. 1412(a)(10)(A))
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Due Process and Homeschool
Note: since homeschools are private schools there is no right to bring
a due process petition when a school denies services. Private
school
students may be served under a "service plan," but have limited appeal
rights. Thus, parents must ask the school for services and be
denied
before enrolling the student in a private school.
Case #002596 – Marie Bracki, Hearing Officer
Independent Education Evaluation, Unilaterally Placed in Private School
(Home Schooled)
ISBE synopsis: "The child’s guardian filed a request for
due
process claiming that the District failed to provide a free appropriate
public education, failed to consider an independent evaluation, and
failed
to provide an IEP and special education services. The District
requested
that the hearing officer dismiss the matter citing that the student was
home-schooled and, therefore, not entitled to the same safeguards under
IDEA. Further the District stated the hearing officer had no
jurisdiction
to reconsider a previous Order issued in 2001, and that the guardian
had
not cooperated with the District to allow it to provide FAPE. The case
was dismissed.
The District was represented by an attorney. The guardian was assisted
by an advocate."
Did the administrative proceeding consider 23 Ill. Admin Code 223.340(b)?
The officer should resolved "Disagreements between a parent and a
school
district regarding the district’s provision of an appropriate program
for
a particular child shall be resolved by means of the due process."
Case #002767 – Carolyn Ann Smaron, Hearing Officer
Motion to Dismiss – Student Parentally Placed in Private
School
ISBE Synopsis: The hearing officer dismissed the case on the grounds
that 23 IAC 226.350(c) does not apply to disputes between a local
school
District and parents of a student unilaterally enrolled in a private
school.
Both parties were represented by legal counsel.
Case #002829 – Stephen B. Rubin, Hearing Officer
Child Find, Unilateral Placement in Private School
ISBE Synopsis: The hearing was requested by the parent seeking
reimbursement
for tutoring and testing in the amount of $3,085 and tutoring services
provided in a parochial school rather than a district school. Since the
child was unilaterally placed in a private school for non-educational
reasons,
the issues pertaining to the delivery of services on the IEP were not
subject
to a due process hearing. The only issue the hearing officer considered
was whether the District violated its child find obligations with
respect
to this child.
The hearing officer found that the District did not violate its child
find obligations with respect to this student. The parents’ request for
relief was denied.
The District was represented by legal counsel; the parent was not
represented.
Court orders reimbursement to parent
for her
services
In one case, the court ordered reimbursement to the mother of a child
enrolled
in a home program: in Bucks County Department of Mental Health v.
De
Mora, (E.D. Pa. 2002), the court found that school district had
failed
to offer an appropriate program. Since the school failed to
provide
enough trained therapists, and few therapists could be found in the
community,
the court ordered that the parent should be paid for the time she spent
educating the child in the ABA program.
This case was affirmed by the Third
Circuit
:
"...we hold that under the particular circumstances
of this case, where a trained service provider was not available and the
parent stepped in to learn and perform the duties of a trained service
provider, reimbursing the parent for her time spent in providing
therapy is "appropriate" relief.
Bucks County Department of Mental Health/Mental Retardation, Appellant v.
Commonwealth of Pennsylvania, Department of Public Welfare; Barbara Demora
No: 02-3919; 379 F.3d 61;2004 U.S. App. LEXIS 17231; August 18, 2004.
http://caselaw.findlaw.com/data2/circs/3rd/023919p.pdf
DeMora case via Lexisone
One judge in New York has ruled that
disabled children should by forced to fail before they get an
appropriate
program. Here is a great
response to the claptrap.
Judge: "Children Must Fail"
Mr. Greene also deflates other myths about special
education. January 30, 2005.
"Courts
have done a lot of crazy things, but recently a federal judge in
Manhattan
came up with what just might be the nuttiest idea yet: mandatory
failure
for disabled children. Even if it’s clear in advance that public
schools
can’t meet a child’s special needs, he says they still don’t have to
put
him in a better-equipped private school until they’ve tried to teach
him
themselves and failed. "
The law is clear that parents must consent
to
a Special Education placement decison.
- First, parents must have a say in the placement. (34 CFR
300.501(c)
and Q&A 37. )
- Second, parents must consent to the provision of special
education and
related services. (34 CFR 300.505(a)(1)(ii).)
- Third, parents must be given prior written notice of the meeting
which
sets the placement. (34 CFR 300.503.)
- Fourth, there is no provision in the law which can override a
parental
refusal of a placement -- the school cannot take the parents to due
process
if they refuse consent to a placement. (34 CFR 300.505.)
- Consent means that the parent has been fully informed of
all
relevant
information. (34 CFR 300.500(b)(1).)
Zachary Deal vs. Hamilton County Dept. of Educ, the Sixth
Circuit
Cour of Appeals stated:
The district court erred in assuming
that
merely because the Deals [parents] were present and spoke at the
various IEP meetings, they were afforded adequate opportunity to
participate. Participation
must be more
than a mere form; it must be
meaningful.
W.G., 960 F.2d at 1485; see also Knox County Sch., 315 F.3d at
694-95 (stating that school officials must be willing to listen to
the parents and must have open minds).
Despite the protestations of the Deals, the School System never even
treated a one-on-one ABA program
as a viable option. Where there was no way that anything the Deals
said, or any data the Deals produced,
could have changed the School System’s determination of appropriate
services, their participation was no
more than after the fact involvement. See Spielberg, 853 F.2d at 259.
Thus, the Court held the school district violated the law and ordered
the
district to reimburse all the parent's expenses
http://pacer.ca6.uscourts.gov/opinions.pdf/04a0434p-06.pdf
Illinois Regulation Section 226.340
Nonpublic
Placements by Parents
Except as provided in 34 CFR 300.403, a parent who elects to place a
child
in a nonpublic school or facility without the consent or referral of
the
local school district is not entitled to have the district pay for that
placement if the district made or attempted to make FAPE available to
the
child.
a) Disagreements between a parent and a school district
regarding
the district’s provision of an appropriate program for a particular
child
shall be resolved by means of the due process afforded pursuant to
Subpart
G of this Part.
b) No child who is placed into a nonpublic facility by his or her
parent(s)
without the consent or referral of the local school district has an
individual
right to receive the special education and related services that the
child
would receive if enrolled in the district. Instead, a district’s
services
to such children are subject to the provisions of Section 226.350 of
this
Part.
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