Articles
PLACING YOUR CHILD WITH SPECIAL NEEDS IN A PRIVATE SCHOOL RULES GOVERNING THE RESPONSIBILITIES OF SCHOOL DISTRICTS OVER PRIVATE SCHOOL CHILDREN
By Michelle Lee, Esq.
This article details possible rights and remedies available under state and/or federal law for the child with special needs placed outside of programming provided by the home district. If you have placed your child with special needs in a private school, your child may still be able to receive some special education and related services from the school district in which the private school is located. Further, the school district is obligated to locate, identify and assess your child. Finally, if you choose to move your child from a district placement to a private school, you may be able to recover reimbursement costs from the district. 20 U.S.C. §1412(a)(10) of IDEA, 34 C.F.R. §§ 300.129-148, and California Education Code §§ 56170-56194, respectively, govern private school placement of special education students.
What is the difference between a nonpublic school and a private school?A private school is run and supported by individuals or a corporation rather than by a government or public agency. A “nonpublic school” (NPS) is a type of private school that exclusively enrolls children with exceptional needs pursuant to an IEP, and is certified by the California Department of Education (CDE) to provide special education and related services. Most NPSs have master contracts with school districts to provide alternative special education and services.
Who are “private school children with disabilities” for the purpose of this article? (1) Children with disabilities (2) enrolled by parents in private schools or facilities (3) other than individuals with exceptional needs who have been placed by a school district in an NPS or other private school.
Does the school district have an obligation to “find” my private school child with a disability? The law requires school districts to locate, identify and assess all private school children with disabilities who attend private schools within the service area of the district. This law, commonly known as “Child Find,” creates an affirmative duty on the part of the district, meaning the district must take steps to identify children in its service area and when appropriate, offer special education evaluation and possible program support(s).
Does the school district have any obligation to provide private school children with special education and related services? Yes. A school district must make provision for the participation of private school children with disabilities in special education programs and related services.
Does the school district provide private school children with services through the regular IEP process? No. An Individualized Services Plan (ISP) must be developed and implemented for each private school child who has been designated by the district to receive special education and related services. However, the development of an ISP parallels the regular IEP process.
How do I get a services plan in place for my child? As noted above, school districts are required to locate and assess your private school child. The district is then responsible for initiating and conducting meetings to develop, review, and revise an ISP. The district must also ensure that a representative from the private school attends any ISP meetings. Note, however, that the law accords the district the final say regarding the services to be provided to your child, if any.
Does my private school child with a disability have the same rights to a FAPE as a public school child with a disability? No. The 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.
However, Parents may have a basis for reimbursement for tuition costs and services through a due process filing.
Can the school district provide services for my child at his private school? The district may provide special education and related services to children on the premises of private, including religious, schools, but the education and services must be secular, neutral, and non-ideological. District employees or individuals or agencies contracted by the district may deliver these district-funded services.
I want to move my child from a public school to a private school because the school district failed to offer my child a FAPE. Can the school district reimburse me for the cost of enrolling my child in the private school? Maybe, if you initiate a request for due process against the school district for failure to provide your child a FAPE. A court or due
process hearing officer may require the school district to reimburse you if the court or hearing officer finds that: (1) the school district did not make a FAPE available to your child in a timely manner, and (2) private placement is appropriate.
Before I move my child to the private school, is there anything I can do to help my chances of recovering the full reimbursement amount in the case that I prevail at the due process hearing? Yes. You can give the district notice: (1) at the most recent IEP meeting prior to removing your child from public school consider informing 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, including any holidays that occur on a business day, 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.
Are there any exceptions to the notice requirement above? A court or hearing officer cannot reduce or deny the reimbursement cost if the school prevented you from providing notice, if you did not receive notice from the district informing your rights to disagree with placement, or if complying with the notice requirements would likely cause physical harm to your child (because the public school placement was potentially dangerous). Additionally, a court or hearing officer has discretion not to reduce or deny the reimbursement cost if you cannot read or write in English or if complying with the notice requirements would likely subject your child to serious emotional harm.
I’ve informed the school district of my intent to unilaterally place my child in private school. I have not removed my child yet, and the district has notified me of its intent to assess my child. Should I let the district assess my child? It depends. Allowing the district to assess your child may help your chances of being reimbursed for private school costs. However, you may want to consult with an experienced special education attorney on this point.
For more information on transition planning, preparing for an IEP or Due Process hearing or for assistance in these processes please contact:
Woodsmall Law Group, PC
2600 Mission Street, Suite 200
San Marino, CA 91108
(626) 440-0028
2600 Mission Street, Suite 200
San Marino, California 91108
(626) 440-0028
