The Arizona Supreme court held last week that the state program permitting parents of special education students to receive vouchers to spend at private or parochial schools is unconstitutional. The decision was unanimous. the state constitution specifically bans the use of taxpayer funds to assist private or parochial schools. This link has a news account. Here is another news article. Here is an unofficial copy of the opinion of the court. Because the decision was based upon a state-specific constitutional provision and not the U. S. constitution, the decision will not likely have much application to voucher programs in other states. This decision will, however, likely cause another round of discussion concerning the alleged link between the No Child Left Behind Act and the desire of some folks to allow vouchers for all parents. Stay tuned.
The relationship between private schools and special education law is very complex. Parents who place their children with disabilities in private schools(and I'm not talking about instances where FAPE is in issue) generally give up the right to FAPE under IDEA. Under the 1997 amendments, however, and even more so under IDEA'04, public school districts are required to do some things for private school students. There is a child find requirement. And based upon the child find results, a public school district must spend a portionate share of its federal funding on private school students. Private school parents have only very limited due process hearing rights. Needless to say the private school requirements are very controversial. Any opinions out there?
Private Schools/Equitable Participation
ReplyDeleteEquitable Participation Q & A
The revision to IDEA in 2004 and the subsequent 2006 IDEA regulations
significantly
changed the obligation of States and LEAs to children with disabilities enrolled
by their
parents in private elementary and secondary schools. Section 612(a)(10)(A) of
the Act and
Sections 300.130 – 300.144 now require LEAs (IUs in Pennsylvania) in which the
private
schools are located, rather than the LEAs in which the parents of such children
reside, to
conduct child find and provide equitable services to parentally-placed private
school children
with disabilities.
The Act provides, that, in calculating the proportionate amount of Federal funds
under Part
B of the Act that must be spent on parentally-placed private school children
with disabilities,
the LEAs (IUs in Pennsylvania) where the private schools are located, must
conduct a
thorough and complete child find process to determine the number of
parentally-placed
children with disabilities attending private elementary schools and secondary
schools located
in the LEAs (IUs in Pennsylvania). In addition, after timely and meaningful
consultation
with representatives of private elementary schools and secondary schools and
representatives of parents of parentally-placed private school children with
disabilities, there
is an obligation of the LEA (IU) to spend a proportionate amount of funds to
provide
services to children with disabilities enrolled by their parents in private
school. The amount
of funds available for EP is now based on the total number of children with
disabilities who
are enrolled in the private schools located in the LEA (IU) whether or not the
children and
their parents reside in the LEA (IU).
The following are answers to questions raised regarding equitable participation
in PA.
Child Find and Evaluation
1. What educational agency has Child Find responsibilities for Equitable
Participation (EP)?
A. In PA, the IU has child find responsibilities for EP. For purposes of FAPE,
the school
district of residence has child find responsibilities; whereas for purposes of
equitable
participation, the responsibility rests with the local education agency where
the private
school is located. In Pennsylvania the local education agency for equitable
participation is
the Intermediate Unit where the private school is located. It is conceivable
that a parent
could obtain evaluations from both entities.
2. When an LEA (IU) conducts an evaluation, should the LEA (IU) automatically
ask for
parental consent to share the findings with the district of residence?
A. 34 CFR 300.622(b)(3) states that if a child is enrolled, or is going to
enroll in a private
school that is not located in the LEA of the parent's residence, parental
consent must be
obtained before any personally identifiable information about the child is
released between
officials in the LEA where the private school is located and officials of the
LEA of the
parent's residence.
An IU may request from the parent permission to share the evaluation information
with
their district of residence, however, the IU may not require that a parent grant
this
permission in order to move forward with the EP evaluation.
3. Do the 2006 IDEA regulations allow for different types of evaluations if the
parent clearly
requests EP services rather than FAPE?
A. No, 34 CFR 300.131© states that in carrying out the requirements of this
section ( Child
find for parentally placed private school children with disabilities_), the LEA
, or if applicable
the SEA must undertake activities similar to the activities undertaken for the
agency's public
school children.
4. Who makes the eligibility determination?
A. Eligibility is determined by a group of knowledgeable professionals and the
parents for
both FAPE and EP. For purposes of FAPE, the qualified professionals should be
from the
district of residence; for EP purposes, the qualified professionals should be
from the IU
where the private school is located.
5. What process is required when the parent is seeking FAPE?
A. (a) Evaluation; (b) Eligibility determination; (c) Offer of FAPE by the
school district of
residence; (d) Acceptance or refusal of FAPE by the parents.
6. What process is required when the parent is seeking EP only?
A. (a) Evaluation; (b) Eligibility determination; (c) Offer of an EP Services
Plan may occur if
the LEA (IU in PA) and private school agencies have determined that the EP funds
will be
directed to direct service for an individual student, however, there is no
entitlement to EP
services for individual children; therefore, the sequence may end at step (b).
7. If the parent is undecided regarding EP or FAPE what would the process be?
A. The LEA (IU) must inform the parents of the child find process; PDE
recommends use of
the public information brochure developed by PaTTAN, King of Prussia available
to all IUs.
Once the parent understands the options, they are better prepared to make the
choice
between EP and FAPE. The parent may also contact their local school district
regarding the
availability of FAPE in the public school.
8. Can parents insist that the school district of residence conduct an
evaluation even if they
know they do not want FAPE, and they indicate at the onset their intention is EP
services at
the private school?
A. A parent can request an evaluation from their school district of residence
under any
circumstances. The school district has the option of either conducting the
evaluation or
issuing a Notice of Recommended Educational Placement (NOREP) declining to
evaluate and
offering the parents the opportunity to initiate due process proceedings. The
resident
district cannot refuse to evaluate a child because the child is attending a
private school or
because the IU also has a duty to evaluate the child.
Provision of Services
9. What is an Equitable Participation Services Plan?
A. An EP Services Plan means a written statement that describes the special
education and
related services the LEA (IU) will provide to a parentally-placed child with a
disability
enrolled in a private school who has been designated to receive direct services,
including
the location of the services and any transportation necessary.
10. Does every student getting direct EP services get an Equitable Participation
Services
Plan?
A. Yes, every student who has been designated to receive direct services would
have an EP
Service Plan.
11. If a child is not getting a direct service should they have an Equitable
Participation
Services Plan?
A. If through the timely and meaningful consultation between the private schools
and the
LEA (IU) where the schools are located, EP includes services such as teacher
consultation
and/or professional development only; there would be no individual services
plan. These
services would be outlined in the EP Services agreed to by the LEA (IU) and the
private
schools through timely and meaningful consultation.
12. What does an Equitable Participation Services Plan look like?
A. 34 CFR 300.138(b)(2) state that the services plan must, to the extent
appropriate meet
the requirements of 300.320. The requirements of 34 CFR 300.320 are the required
contents of an IEP for a student attending public school.
13. Can a child have an Equitable Participation Services Plan and an IEP?
A. A child would not have both an EP Services Plan and an IEP; an EP Services
Plan
describes the EP services; while the IEP describes the FAPE. A child is eligible
to receive EP
services in a private school within the allowable federal expenditures and
federal regulation
related to equitable participation. FAPE is an entitlement that is made
available to students
enrolled in public schools who are found eligible for special education. There
is no
entitlement to the provision of FAPE when a parent unilaterally places their
child in a private
school. A district is permitted to provide FAPE in a private school when a
parent unilaterally
places their child there however the district is not mandated or required to
provide such
services.
14. Can a child have a Chapter 15 Service Agreement and a EP Services Plan?
A. No. 22 Pa Code 15.2 defines a student who is eligible under Chapter 15 as a
student
who is not eligible as defined under Chapter 14. To be eligible for EP a student
would have
to be eligible under Chapter 14 as a student who is eligible for special
education. By
definition a student who is eligible under Chapter 15 is not eligible under
Chapter 14 and
therefore not eligible for EP.
15. Once a student receives EP Services, when may the services end?
A. A student no longer receives EP services when he is no longer eligible for
such services;
when funds for EP Services are exhausted; or after timely and meaningful
consultation with
representatives of private elementary schools and secondary schools and
representatives of
parents of parentally-placed private school children with disabilities, the LEA
(IU)
determines that it will no longer offer the type of services that the student
receives.
16. How often must a student receiving EP services be re-evaluated?
A. A student receiving EP services must be re-evaluated following the same
timelines for
reevaluation as students with disabilities in public school.
17. Does the LEA where the private school is located (IU) notify the district of
residence that
a re-evaluation is needed?
A. No, the LEA where the private school is located (IU) is responsible for
conducting the reevaluation.
In fact, the LEA (IU) would have to secure written consent to share such
information with the district of residence.
Record Keeping and Funding
18. Who keeps data regarding EP services?
A. 34 CFR §300.132(c) requires that each LEA(IU)where a private school is
located must
maintain in its records, and provide to the SEA, the number of students
evaluated, the
number of students determined to be eligible for services, and the number of
students
served through EP services regarding parentally-placed private school children.
19. May IUs charge the districts of residence?
A. No, charging back to the district of residence is not permitted by IDEA.
20. Who pays for evaluations for EP services?
A. 34 CFR §300.131(a) requires that the LEA (IU) where the private school is
located pays
for these evaluations. 34 CFR §300.131(d) makes it clear that money for child
find and
evaluations cannot be subtracted from the funds available for EP services.
21. How are Equitable Participation amounts calculated?
A. Appendix B to the Part 300 Regulations provides a thorough explanation of
proportionate
share calculation. An example from that appendix follows:
Number of eligible children with disabilities in public schools in the LEA (IU)
300
Number of parentally-placed eligible children with disabilities in private
elementary schools
and secondary schools located in the LEA (IU) 20
Total number of eligible children 320
Total allocation to LEA (IU 30) $152,000
Divided by total number of eligible children 320
Average allocation per eligible child 476.5625
Multiplied by the number of parentally placed children with disabilities 20
Amount to be expended for parentally-placed children with disabilities $9,531.25
22. Can students receiving EP services be included on the Penn Data Child Count?
A. No, only students receiving FAPE can be counted for the Penn Data Child
Count. The fact
that these students can not be counted on Penn Data Child Count does not affect
the
amount of IDEA funds the IU receives. The IDEA allocation for each IU is based
on a federal
formula which considers population and poverty.
Federal data reports do include reporting on parentally placed students in
private schools
however this is not the individual child count for students receiving FAPE
provided by the
public school.
Other
23. Does EP apply when a Kindergarten class is not in an elementary school?
A. No, EP applies in elementary and secondary schools that meet the statutory
definition of
an elementary or secondary school.
24. Does EP apply if the parent enrolls and pays for their child in an approved
private
school?
A. Although the regulations are silent on this point, it is the position of PDE
that EP applies
to any student identified with a disability who is parentally placed in any
private school that
meets the definition of either an elementary or secondary school.
25. Does the documentation of the consultation process between representatives
and
parents of the private school with representatives of the LEA (IU) where the
private schools
are located, need to be included as part of the IU IDEA Special Education
Application?
A. Yes, the documentation of the timely and meaningful consultation process
between the
private and public schools needs to be included as part of the annual IU Special
Education
IDEA – B Application.
26. If the private school official wishes to file a complaint with PDE, how
should they
proceed?
A. Complaints regarding EP in Pennsylvania will be handled through the PDE's
Complaint
Management System and should follow the procedures outlined at www.pattan.net
27. Is there or is there not the possibility to carry over EP funds from one
year to another?
A. Yes, federal regulations at 34 CFR 300.133 (a)(3) state if an LEA has not
expended for
equitable services all of the funds of this section by the end of the fiscal
year for which
Congress appropriated the funds, the LEA must obligate the remaining funds for
special
education and related services (including direct services) to parentally placed
private school
children with disabilities during a carry-over period for one additional year.
28. Are EP services restricted to non-profit schools?
A. Yes, 34 CFR 300.130 states parentally placed private school children with
disabilities
means children with disabilities enrolled by their parents in private, including
religious
schools or facilities that meet the definition of elementary school in 300.13 or
secondary
school in 300.36 other than children with disabilities covered under 300.145
through
300.147.
The definition of elementary school at 300.13 states elementary school means a
nonprofit
institutional day or residential school, including a public elementary charter
school, that
provides elementary education, as determined under State law. .Secondary school
at
300.26 states secondary school means a nonprofit institutional day or
residential school,
including a public secondary charter school, that provides secondary education,
as
determined under State law, except that it does not include any education beyond
grade 12.
29. When it is appropriate to develop an individualized EP Service Plan for a
student or
students, are there components of the current Individualized Education Program
(IEP) plan
that do not need to be included or addressed as part of the EP service plan
development
process?
A. It is difficult to generalize what should or should not be a part of the
services plan
because each situation is different. 34 CFR 300.138(b)(2) states that the
services plan
must, to the extent appropriate meet the requirements of 34 CFR 300.320. The
requirements of 300.320 are the required contents of an IEP for a student
attending public
school. OSEP states in the discussion section of the regulations that "the EP
services plan
must describe the specific special education and related services offered to a
parentallyplaced
private school child with a disability designated to receive services. The
services
plan also must, to the extent appropriate, meet the IEP content, development,
review,
and revision requirements described in section 614(d) of the Act." Therefore, if
a particular
section is not necessary to describe the services that the student will be
receiving, that
section in the service plan could be marked as not applicable. The only section
that clearly
is not required under the state or federal regulations is the participation in
statewide
assessment, as students unilaterally enrolled by their parents in private
schools are not
mandated to take the statewide assessments. Therefore, it would be allowable for
this
section to be eliminated for EP services.
30. If an EP service plan is developed for a student, is it necessary to provide
the IDEIA
procedural safeguards notice to the parents at the conclusion of the process?
A. No. The procedural safeguards notice is related to the provision of FAPE. EP
services do
not provide FAPE and the parents are not entitled to the same procedural
safeguards as
students in the public schools.
31. Why is the Notice of Recommended Education Placement (NOREP) not required as
a
part of the development and implementation of an EP service plan?
A. It is not needed because the NOREP is designed to provide the parent with the
procedural safeguards and informed consent of the acceptance or rejection of
FAPE in the
public school. The EP services plan only describes the services the student is
receiving and
are available at the school as determined by the private schools within the LEA
in
collaboration with the LEA.
32. Is Least Restrictive Environment (LRE) a component for consideration in the
development and implementation of an EP Service Plan?
A. No.
33. In what circumstances, if any, is it appropriate for an intermediate unit to
issue a
NOREP as a part of the EP process?
A. The NOREP is issued in the EP process when the evaluation of the child
identifies the
child as not eligible for special education services. In those circumstances a
NOREP is
issued as the parents have the right to contest the identification of the child
through due
process.
34. Is there a provision in the EP regulations for parents to request an
Independent
Education Evaluation (IEE) as a part of the evaluation process for EP services?
A. No. The IEE at public expense is only available for those students seeking
FAPE, not EP
services. If the parent is seeking FAPE, the school district of residence would
then be the
entity responsible for the parent to exercise that option.
Thanks Anon,
ReplyDeleteI'm sure many readers will enjoy the Q & A document.
Jim