March 11, 2022
Source: Disability Scoop
Students with disabilities have broad rights when they attend public school, but federal officials are now weighing in on how the law applies when parents choose private school instead.
The U.S. Department of Education recently issued new guidance clarifying how the Individuals with Disabilities Education Act affects children placed in private schools by their families.
Under IDEA, students with disabilities have the right to a free appropriate public education, or FAPE. But whether or not that entitlement extends to children at private schools depends.
In some cases, children enrolled at public schools are placed at private schools by their parents when they do not believe that FAPE has been provided by the local school district. And in other cases, children are sent to private schools by their district as a means of providing FAPE.
The new 55-page Q&A document, which the Education Department said updates and supersedes guidance from 2011, applies specifically to a third category of kids — those placed in private school by their families without first enrolling at public school and for whom FAPE is not an issue.
In these cases, federal officials say that some provisions of IDEA still apply.
“While IDEA provides no individual entitlement to children with disabilities whose parents have placed them in a private school when FAPE is not at issue, the law does require that (a school district) spend a proportionate amount of its IDEA Part B funds to provide equitable services to this group of children, which could include direct and/or indirect services,” the guidance states.
School districts must work with private schools and parents through a process known as consultation to determine what special education services might be made available to children attending private school and how they are to be provided.
The latest version of the guidance makes clear that under IDEA children with disabilities who attend private schools using state vouchers or scholarships are considered to have been placed there by their parents.
It also offers new details on how the rules apply to preschoolers with disabilities and children who live out-of-state or those whose parents live out of the country. And, it clarifies the personnel qualification requirements of those providing IDEA services to students who have elected to go to private schools.
Federal education officials are also addressing the obligations that school districts have to private school students with disabilities under IDEA in the event of an extended school closure like what occurred early in the COVID-19 pandemic.
In such circumstances, the guidance indicates that equitable services to private school students must continue so long as the district continues to provide virtual or remote learning opportunities for general education students, though the services or the way they’re provided may look different.