April 2022 — 

The MLO Minute: “Services for Students in Private Schools: Updated Guidance from the Department of Education”, By Michael Connolly, Esq., Supervising Partner of our Special Education Department —

For students with disabilities attending private schools where there is no dispute with the Local Educational Agency (“LEA”) – typically the child’s public school district of residence — over the provision of a Free Appropriate Public Education (“FAPE”), no individual right to special education services from the LEA exists.  However, LEAs do have an equitable participation obligation under the IDEA, which requires the LEA to spend a proportionate amount of funding on special education services to students attending private schools, including religiously affiliated schools, within the boundaries of the LEA.  More specifically, the law requires that the LEA meet with the private schools in their boundaries to discuss the needs for services and decide how the proportionate funding will be spent (e.g., XYZ school will receive so much reading support services, and ABC school will receive so much speech and language services, etc.).  However, parents and students generally have no individual right to challenge what is agreed upon between the LEA and the private school.

Recently, the United States Department of Education, Office of Special Education Services (“OSEP”) issued an updated guidance on services available to students placed by their parents in private schools through a Question-and-Answer sheet.  The updated guidance provides a lot of technical information, as well as information on how to calculate the proportionate share and the consultation process that must occur.  Of particular importance to parents, however, is the guidance that although students in private schools may not have an individual right to FAPE and therefore are not entitled to an Individualized Education Plan (“IEP”) at the private school, to the extent a student is receiving services through equitable participation, the student should receive a Service Plan that outlines the services provided and the goals for those services.  Moreover, that Services should be reviewed and revised at least annually, and the parents should be involved in that process. Equitable participation services should also be provided to the student at the private school, and not at another location that would cause disruption to the student’s education.

Remember, the above applies to situations where FAPE is not in dispute.  However, if there is a dispute over the provision of FAPE in the student’s public school district of residence, parents may be entitled to tuition reimbursement where the school district is not able to provide FAPE, the private school is able to meet the student’s needs, and other equitable consideration support reimbursement.

Please do not hesitate to contact us if we can be of assistance. Our initial consultation is free and these matters are often handled on a contingency basis without hourly fees charged to families.