5.06 Parental Placement in Private School

5.06.01 Disagreements Between Parent and District About the Provision of FAPE

Legal Citations

This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. 34 C.F.R. § 300.148(a).

Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. 34 C.F.R. § 300.148(b).

5.06.02 Reimbursement for Parents' Expenditure when FAPE is Not Provided

Legal Citations

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. 34 C.F.R. § 300.148(c).

A. Limitation on Reimbursement

The cost of reimbursement described in paragraph (c) of this section may be reduced or denied -

(1) If -

(i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;

(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

(3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. 34 C.F.R. § 300.148(d).

B. Exception to Limitation on Reimbursement

Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement -

(1) Must not be reduced or denied for failure to provide the notice if -

(i) The school prevented the parents from providing the notice;

(ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or

(iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and

(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -

(i) The parents are not literate or cannot write in English; or

(ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. 34 C.F.R. § 300.148(e).

5.06.03 Provision of Services to Children Enrolled by Their Parents in Private School

Legal Citations

A. Determining Services

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. 34 C.F.R. § 300.130.

(1) Decisions about the services that will be provided to parentally-placed private school children with disabilities under §§ 300.130 through 300.144 must be made in accordance with paragraph (c) of this section and § 300.134(c).

(2) The LEA must make the final decisions with respect to the services to be provided to eligible parentally-placed private school children with disabilities. 34 C.F.R. § 300.137(b).

If a child with a disability is enrolled in a religious or other private school by the child's parents and will receive special education or related services from an LEA, the LEA must -

(1) Initiate and conduct meetings to develop, review, and revise a services plan for the child, in accordance with 300.138(b); and

(2) Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the religious or other private school, including individual or conference telephone calls. 34 C.F.R. § 300.137(c).

B. Consultation with Private School and Parent Representatives

To ensure timely and meaningful consultation, an LEA, or, if appropriate, an DEA, must consult with private school representatives and representatives of parents of parentallyplaced private school children with disabilities during the design and development of special education and related services for the children regarding the following:

(c) The consultation process among the LEA, the private school officials, and representatives of parents of parentally-placed private school children with disabilities, including how the process will operate throughout the school year to ensure that parentally-placed children with disabilities identified through the child find process can meaningfully participate in special education and related services.

(d) How, where, and by whom special education and related services will be provided for parentally-placed private school children with disabilities, including a discussion of -

(1) The types of services, including direct services and alternate service delivery mechanisms; and

(2) How special education and related services will be apportioned if funds are insufficient to serve all parentally-placed private school children; and

(3) How and when those decisions will be made;

(e) How, if the LEA disagrees with the views of the private school officials on the provision of services or the type s of services (whether provided directly or through a contract), the LEA will provide to the private school officials a written explanation of the reasons why the LEA chose not to provide services directly or through a contract. 34 C.F.R. § 300.134(c)-(e).

C. Location of Services

Services to parentally-placed private school children with disabilities may be provided on the premises of private, including religious, schools, to the extent consistent with law. 34 C.F.R. § 300.139(a).

For those children with a disability under §§ 125A.03 to 125A.24 who attend nonpublic school at their parent's choice, a school district may provide special instruction and services at the nonpublic school building, a public school, or at a neutral site other than a nonpublic school as defined in § 123B.41, subdivision 13. The school district shall determine the location at which to provide services on a student-by-student basis, consistent with federal law. Minn. Stat. § 126C.19, subd. 4(b).

D. Personnel to Deliver Services

The services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements of § 300.18. 34 C.F.R. § 300.138(a)(1).

An LEA may use funds available under sections 611 and 619 of the Act to make public school personnel available in other than public facilities -

(1) To the extent necessary to provide services under §§ 300.130 through 300.144 for parentally-placed private school children with disabilities; and

(2) If those services are not normally provided by the private school. 34 C.F.R. § 300.142(a).

An LEA may use funds available under sections 611 and 619 of the Act to pay for the services of an employee of a private school to provide services under §§ 300.130 through 300.144 if -

(1) The employee performs the services outside of his or her regular hours of duty; and

(2) The employee performs the services under public supervision and control. 34 C.F.R. § 300.142(b).

E. Level of Service

Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools. 34 C.F.R. § 300.138(a)(2).

F. Separate Classes Prohibited

An LEA may not use funds available under section 611 or 619 of the Act for classes that are organized separately on the basis of school enrollment or religion of the students if -

(a) The classes are at the same site; and

(b) The classes include students enrolled in public schools and children enrolled in private schools. 34 C.F.R. § 300.143.

G. Expenditure

(a) An LEA may not use funds provided under section 611 or 619 of the Act to finance the existing level of instruction in a private school or to otherwise benefit the private school.

(b) The LEA must use funds provided under Part B of the Act to meet the special education and related services needs of parentally-placed private school children with disabilities, but not for meeting -

(1) The needs of a private school or

(2) The general needs of the students enrolled in the private school. 34 C.F.R. § 300.141.

H. Equipment and Supplies

(a) A public agency must control and administer the funds used to provide special education and related services under §§ 300.137 through 300.139, and hold title to and administer materials, equipment, and property purchased with those funds for the uses and purposes provided in the Act.

(b) The public agency may place equipment and supplies in a private school for the period of time needed for the Part B program.

(1) Are used only for Part B purposes; and

(2) Can be removed from the private school without remodeling the private school facility.

(d) The public agency must remove equipment and supplies from a private school if -

(1) The equipment and supplies are no longer needed for Part B purposes; or

(2) Removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes.

(e) No funds under Part Bo f the Act may be used for repairs, minor remodeling, or construction of private school facilities. 34 C.F.R. § 300.144

5.06.04 Transportation Services [See also Chapter 11]

Legal Citations

(i) If necessary for the child to benefit from or participate in the services provided under this part, a parentally-placed private school child with a disability must be provided transportation -

(A) From the child's school or the child's home to a site other than the private school; and

(B) From the service site to the private school, or to the child's home, depending on the timing of the services.

(ii) LEAs are not required to provide transportation from the child's home to the private school. 34 C.F.R. § 300.139(b)(1).

The cost of the transportation described in paragraph (b)(1)(i) of this section may be included in calculating whether the LEA has met the requirement of § 300.133. 34 C.F.R. § 300.139(b)(2).

If a resident pupil with a disability attends a nonpublic school located within the district of residence, the district must provide necessary transportation for that pupil within the district between the nonpublic school and the educational facility where special instruction and services are provided on a shared time basis. If a resident pupil with a disability attends a nonpublic school located in another district and if no agreement exists under Minn. Stat. § 126C.19, subdivision 1 or 2, for providing special instruction and services on a shared time basis to that pupil by the district of attendance and where the special instruction and services are provided within the district of residence, the district of residence must provide necessary transportation for that pupil between the boundary of the district of residence and the educational facility. The district of residence may provide necessary transportation for that pupil between its boundary and the nonpublic school attended, but the nonpublic school must pay the cost of transportation provided outside the district boundary. Minn. Stat. § 125A.18