Family & Community Special Communities
Special Education

February 4, 2000

Guidance on Providing Special Education Services for Students Attending Private Schools at Private Expense

In an outside section of the FY2000 state budget (St. 1999, c. 127, §258), the Legislature has directed Massachusetts schools to continue providing special education services to private school students consistent with the regulatory language in the Chapter 766 regulations and the federal requirements in effect prior to the reauthorization of the federal special education law in 1997. This means that Massachusetts state law requires a higher standard of services than the federal Individuals with Disabilities Education Act currently requires.

This memorandum provides guidance on how this outside section affects practice at the local level. First, the regulatory language requires that public schools provide "genuine opportunities [for eligible private school students] to participate in the public school special education program." 603 C.M.R. § 28.205.2. Further, public school special education for private school students must be "comparable in quality, scope, and opportunity for participation to that provided to public school children with needs of equal importance." 603 C.M.R. § 28.205.2.

Below is a question and answer guide to clarify the requirements for private school students. If you have further questions, please contact the Program Quality Assurance Office at 781-338-3700.

Questions and Answers

1. What effect does Outside Section 258 of the FY2000 state budget have on the provision of special education services to Massachusetts students attending private schools at private expense?
   

   Outside Section 258 of the FY2000 state budget requires the Department of Elementary and Secondary Education to "continue in effect and enforce" section 28.205 of the Massachusetts regulations for special education. The outside section essentially requires school districts, as matter of state law, to provide services to private school students to the same extent that they were required to do so under the federal Individuals with Disabilities Education Act prior to its amendment in 1997. Massachusetts state law now requires a higher standard of services than the federal Individuals with Disabilities Education Act currently requires.

2. Is the "Final Guidance" document that the Department published in August 1999 regarding Students with Disabilities Enrolled in Private Schools still in effect?

   No. The August 1999 guidance was based on the federal Individuals with Disabilities Education Act and its implementing regulations rather than the higher standard of service now in place in Massachusetts. While the August 1999 document accurately explains current federal law, it does not address additional requirements of state law. We recommend that schools discard the August 1999 document. This memorandum supersedes it.

3. Who is an "eligible student?"

   Under the current Massachusetts regulations, an "eligible student" is a person, three through twenty-one years of age and residing in Massachusetts, with a disability who has not received a high school diploma; who, as result of his or her disability, is unable to progress effectively in regular education; and who requires special education services in order to develop his or her educational potential. "Special education" is defined as "specially designed instruction." Therefore, to be an "eligible student," such a person must require specially designed instruction to develop his or her educational potential and to progress effectively in regular education. Public school districts are responsible for eligible students who reside in their school district, irrespective of where they may attend school.

4. Does this mean that, in Massachusetts, each eligible student in private schools has an individual right to publicly funded special education services?

   Yes. Each student with a disability has the right to receive a special education evaluation and a determination of eligibility. A student with a disability is eligible for special education services if the Team determines that the student, because of his or her disability, is unable to progress effectively in the regular education program and requires specially designed instruction to progress effectively. If so, the student has the right to receive the services identified by the Team and outlined in the student's Individualized Educational Plan ("IEP").

5. Do private school students have rights to special education identical to students enrolled in public schools?

   No. Because private school students are being educated in a school program that public school districts cannot modify or otherwise control, an IEP offered to a privately enrolled student may differ from that which might be offered to the same student if enrolled in public school. The law requires the public school district to provide services tailored to the individual student's needs and a "genuine opportunity to participate in the public school special education program."

6. What services is a public school district required to provide to eligible private school students?

   Every eligible student enrolled in a private school has the right to have special education services offered that are responsive to that student's individual needs and "comparable in quality and scope" to services provided to eligible students enrolled in a public school. Public school districts may meet the requirement of providing a comparable "opportunity to participate" by providing services in a flexible manner with qualified individuals. For instance, some services may be provided using federal funds and if so, those services may be provided on the grounds of the private school, making the services more easily accessible. If state and local funds are used, services may be provided only at a public school or neutral site. Public schools may be able to accommodate eligible private school students in special education instructional groups that are provided early or late in the school day and that, therefore, create fewer scheduling barriers for students who attend private schools.

7. Does a public school district have additional obligations under federal law with respect to special education for private school students?

   Yes. The specific requirements of federal law can be found at 34 C.F.R. §§ 300.450 through 300.462. Federal law requires public school districts to ensure that representatives of private schools have opportunities to consult with the public school in relation to "child find" activities and in relation to providing special education services. Child find activities include locating, identifying, and evaluating students with disabilities who may be eligible for special education. Whenever possible, representatives of the student's private school should be invited to participate as a member of the public school Team considering the evaluation information and determining appropriate IEP services for each individual student.

8. What is the federal "proportionate share?"

   Federal law also requires public school districts to spend an amount on special education and related services for private school students that is at least the same proportion of the public school district's total federal funds as the number of private school students residing in the public school district is to the total number of eligible students residing in the public school district. This amount is commonly referred to as the "proportionate share."

   The proportionate share (PSHARE) for a public school district is calculated as follows:

   (# of eligible private school students) % (# of ALL eligible students (public & private)) = __% X ($federal entitlement) = PSHARE

   The public school district divides the number of eligible private school students by the total of all eligible students (public and private) to obtain a certain percentage value. This percentage value represents the proportion that eligible private school students represent relative to the total of all eligible students. Subsequently, when the public school district becomes aware of the amount of federal special education entitlement funds it will receive it must identify that same proportion of those funds as the "proportionate share" that must be spent on services for eligible private school students. An example follows.

   Example A public school district determined that ten (10) students who live in its geographical jurisdiction are eligible for special education services and are enrolled in a private or parochial school rather than the public school. The public school additionally determined that 90 public school students are eligible for special education and have IEPs from the public school. Thus, for this district, the proportion of eligible private school students to all eligible students is 10:100 or 10%. As part of the federally required child count conducted in December 1998 the public school district "counted" the 90 public school students on IEPs and two (2) of the eligible private school students, because those two students received special education services from the public school district. In total, the public school submitted a child count of 92 students in December 1998. The share of IDEA-Part B funds that will be provided to Massachusetts school districts during the 1999-2000 school year is calculated at $535/student. Therefore, this district will receive $49,220 in federal special education entitlement funds during the 1999-2000 school year ($535/student served X 92 students). Since eligible private school students constitute 10% of all eligible students, the "proportionate share" of the federal special education funds is 10% of the $49,220 or $4,922. This district must spend at least $4,922 on services for eligible private school students in order to meet its obligation under IDEA-97 during the 1999-2000 school year.

9. Do private school students in Massachusetts have due process rights concerning the provision of special education services?

   Yes. Requests for mediation or appeals may be directed to the Bureau of Special Education Appeals at 781-338-6400. Other requests for assistance or for understanding the legal requirements may be directed to the Program Quality Assurance Services 781-338-3700 and the Department's Problem Resolution System at 781-338-3737.