Private School and Disability Rights

Posted by Susan in Uncategorized | Leave a comment

There are three main scenarios surrounding children who have been found eligible to receive special education services in a public school, but attend private schools:

1. Sometimes school districts offer a child FAPE (Free Appropriate Public Education), but the parents elect to enroll their child in a private school. Children with disabilities found eligible to receive special education services unilaterally enrolled by their parents in private schools no longer have an IEP, but are still entitled to an Individualized Service Plan (ISP). Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools, and have no individual right to equitable special education and related services. Although school districts have a clear responsibility to offer FAPE to students with disabilities residing within their district, those children, when placed by their parent in private schools, do not have the right to receive some or all of the special education and related services necessary to provide FAPE. (20 USC 1415[a][10][A]; 34 CFR 300.137 and 300.138; EC 56173). Even though you enrolled your child in a private school, the school district in which the private school is located has a responsibility under Child Find to identify and evaluate your child, and write an ISP if warranted. Each parentally-placed private school child with a disability who has been designated to receive services should have an ISP. In this scenario the school district in which the child resides would not pay for tuition at the private school, because FAPE was made available to the child and the parents elected to place the child in a private school.

2. Children with disabilities found to be eligible for special education services enrolled by their parents in private schools when FAPE is at issue can possibly receive tuition reimbursement based on a few factors. If the school district made FAPE available and the parents elected to enroll their child in the private school anyway then that is scenario #1 above. If the school district did not make FAPE available to the child and there is a disagreement about FAPE, then the parents can pursue reimbursement if they can show that the district did not make FAPE available and that the private school placement is appropriate. A court or a due process hearing officer may require the school district to reimburse the parent or guardian for the cost of special education and the private school only if the court or due process hearing officer finds that the school district had not made FAPE available to the child in a timely manner prior to that enrollment in the private elementary school or secondary school and that the private placement is appropriate. (20 USC 1412[a][10][C]; 34 CFR 300.148; EC 56175). The parents must inform the IEP team via 10 days written notice that they are rejecting the FAPE offered by the district, must state their concerns and must inform the district of their intent to enroll their child in a private school at public expense. The private school placement does not have to be a certified non-public school (NPS), though often times it is. This child would still have an IEP, and various other laws kick in as to whether or not his placement would remain at the private school during the time the disagreement is being resolved. This scenario describes a common disagreement between parents and school districts. The dispute usually revolves around whether or not what the school district offered was truly appropriate to the child’s needs and hence FAPE. Under The Individuals with Disabilities Education Act of 2004 (IDEA), parents have the right to resolve disputes with their school districts through due process. Procedural safeguards have been designed to protect the rights of children with disabilities and their parents. Parents are urged to consult a reputable special education attorney for legal advice surrounding this scenario.

3. Children with disabilities placed in, or referred to, private schools by the school district do have an IEP and that IEP states that the private school is the school placement decision. Most often times the private school placement will be a certified NPS (non public school), which the school district has a contract with to provide services to those students which it cannot. However, the private school placement by the district does not have to be an NPS. Tuition reimbursement would occur, since under IDEA, this placement would be at no cost to the parents. This often times happens when the child’s needs are unique enough that the school district does not have a classroom or service that will meet the child’s needs and the IEP team agrees that a private school must be used to conform to the child’s IEP.

Parents should figure out which of the above scenarios best describes their situation, keeping in mind that the law requires that to the maximum extent possible, children should be educated in the least restrictive environment (LRE). In scenario #1, the IEP would turn into an ISP when the child is enrolled in a private school. In scenarios #2 and #3, the child would have an IEP.

All children with disabilities found eligible to receive special education services are entitled to a FAPE developed in accordance with their unique needs. Regardless of whether the child attends public or private school, IDEA ensures that his rights are protected. It is essential for parents to understand, assert and execute these rights to improve educational results for their children with disabilities.

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