Accessing Your Child’s School Records (FERPA)

Special Education and the Private School Student Legal Protections & Options for Securing a FAPE

By Shima Kalaei, Esq.

Appropriate placement for a child with special needs can be among the most difficult challenges a parent can face.  Many families, confronted with improperly tailored or failing public school options, turn to the private sector for education.  The law acknowledges this concern and offers some really helpful options.  This article seeks to explore the basic questions for parents navigating the private/public special education.  We hope you find it helpful:

•  Can a student, who is parentally-placed in a private school, receive special education and related service from the District? In order words, is a parentally-placed private school student entitled to a FAPE?
•  If a school district authorizes a student to attend a private school, is that student entitled to a FAPE?

Who are private school students?
A private school student is either:
1) A student whose parents have unilaterally placed him/her in a private schools; or
2) A student whom the school district has authorized his/her placement in a private school.

Are school districts required to identify and assess special education students in private schools?
Yes.  The law requires school districts to locate, identify and assess all private school students with disabilities who attend private schools within the service area of the school district.  This is commonly known as “Child Find.” See 20 U.S.C. §1412(a)(10)(ii), emphasis added.

Is the school district required to provide private school students with special education and related services?  
Yes.  After identification of the student, a school district must make provision for the participation of eligible private school students in special education programs and related services. See 20 U.S.C. §1412(a)(10)(ii)(II).

Does the school district provide private school students with services through the regular IEP process?

Parentally-Placed Private School Student: No. An Individualized Services Plan (ISP) must be developed and implemented for each private school child who has been designated by the school district to receive special education and related services.  However, the development of an ISP parallels the regular IEP process.

School District Authorized Private School Student: Yes, an IEP is required.
How do I get an ISP?  Who must be present at the ISP meeting?
After identifying that a student requires special education and related services, the school district is then responsible for initiating and conducting meetings to develop, review, and revise an ISP.  The school district must also ensure that a representative from the private school attends any ISP meetings.

What special education services are private school students entitled to?
Parentally-Placed Private School Student:T he law states that no parentally-placed 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. While the student may be entitled to some services, the student is not entitled to a FAPE. See 34 C.F.R. §§ 300.137.  However, if a school district places a child in a private school, the child has the same rights under IDEA as if he/she attended a public school. See 20 U.S.C. §1412(a)(10)(B).

Can the school district provide services for my child at his/her private school?
Yes. The school district may provide special education and related services to students on the premises of private schools, including religious schools, but the education and services must be secular, neutral, and non-ideological. District employees or individuals or agencies contracted by the school district may deliver these district-funded services.

Can parents seek reimbursements for funding the tuition and services at the private school?

Parentally-Placed Private School Student: If parents remove their child from a public school to a private school because the school district failed to offer the child a FAPE, then parents may be able to receive reimbursements for tuition of the private school and private services if they initiate a request for due process against the school district for failure to provide the child a FAPE.  OAH may order reimbursements if the hearing officer finds that the school district did not make a FAPE available to the student in a timely manner and that the private placement is appropriate.

School District Authorized Private School Student: If a school district authorizes a private school placement, then the school district is required to fund the placement.  However, sometimes, even if the placement is appropriate, the related services that are offered by the school district may not be appropriate.  Parents are entitled to reimbursements for any out-of-pocket expenses for privately secured expenses under the same analysis as above.

What should parents do before removing their child from the public school?
Parents should give the school district notice: (1) at the most recent IEP meeting prior to removing your child from public school (inform the IEP team that you are rejecting the school district’s placement offer, and state your concerns and your intent to enroll your child in a private school at public expense); OR (2) give the school district written notice of your concerns and intent to enroll your child in a private school at public expense.  Notice should be provided at least 10 business days prior to removing your child from public school.  Also, remember that if a court or hearing officer finds that you acted unreasonably in moving your child, the court or hearing officer may deny or reduce the cost of reimbursement. See 20 U.S.C. §1412(a)(10)(C).

Applicable Law:
20 U.S.C. §1412(a)(10)
34 C.F.R. §§ 300.129-148
Cal. Ed. Code §§ 56170-56194

For more information on the rights of private school students with special needs, please contact us at staff@woodsmalllawgroup.com

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