Family & Community Special Communities
Special Education

Administrative Advisory SPED 2006-3R:
IDEA-2004 and Private School Students

Federal requirements established under the Individuals with Disabilities Education Improvement Act (IDEA-2004) differ from the provisions in Massachusetts' law regarding special education services for students in private schools at private expense ("private school students"). Specifically, our state law provides for a higher level of services than federal law, and our state law assigns responsibility to the district where the student lives rather than the district where the private school is located, as now required under federal law.

We have been working with school officials, representatives of private schools and the U.S. Department of Education's Office of Special Education Programs (OSEP) to ensure that our approach to serving eligible private school students is responsive to federal and state special education requirements and meets the needs of students while minimizing administrative burdens. The purpose of this Advisory is to inform special education administrators and other interested parties about the state and federal requirements (Part I of this memorandum), to explain how they differ (Part II), and to describe the procedures that school districts must follow in order to demonstrate compliance (Part III).

1. State and Federal Requirements to Provide Special Education Services to Parentally Placed Private School Students

   Massachusetts' special education law requires school districts to offer special education and related services to all students who reside in the district, including private school students. These services must be designed to meet the needs of eligible students and must provide students with a genuine opportunity to participate in a public school special education program. The school district must provide or arrange for evaluation, determine eligibility, propose an Individualized Education Program (IEP), and make services available to all eligible students who reside in the district, regardless of where they attend school.

   Under state law, services described by the IEP that are funded with state or local funds must be provided in a public school facility or in another public or neutral site. Schools may provide services at the private school if only federal funds are used. Whether provided with state or federal funds, special education and related services for private school students must be comparable in quality, scope and opportunity for participation to those provided to public school students with disabilities. These services must be described in a properly developed IEP, and the student has individual rights and full access to the state due process procedures.

   Additional information concerning private school students' entitlement to special education and related services under state law is found in Special Education Guidance on Providing Special Education Services for Students Attending Private Schools at Private Expense issued in February 2000, available on the Department's website at http://www.doe.mass.edu/sped/2000/guidancexpnse.html. This guidance states that under state law,

   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.
   
   

   Federal special education law (IDEA-2004) also requires school districts to provide special education services to private school students, although the federal requirements do not require the same higher standard and individual entitlement that Massachusetts provides. Similar to our state law, under IDEA school districts must conduct child find activities and conduct evaluations to determine students' eligibility for special education. However, federal law requires school districts to expend only a proportionate share of federal money received under Part B of IDEA to provide special education services to private school students with disabilities. "Proportionate share" under federal law means the district must spend an amount that represents the same proportion of its federal grant on services for private school students as private school students represent within the population of disabled students served by the district as a whole. Under the federal law, school districts determine which services to provide with that proportionate share of funds, following consultation with the private schools. Districts provide proportionate share services to eligible students through an "individual services plan" instead of an IEP, and private school students do not have an individual entitlement to services as they do under our state law. Although the federal due process protections, including the entitlement to individual services and the right to a hearing, do not extend to private school students under the federal provisions, they do under Massachusetts' higher standard.

2. Reconciling the Differences Between State and Federal Requirements for Private School Students

   The federal and state requirements have been easy to reconcile in the past, since by complying with the higher standard of individual entitlement under Massachusetts' law, school districts have met the federal proportionate share requirement. Also, there has been opportunity for consultation with the private schools, as required by federal law, because the district invites the private school representative to participate in the Team that develops the student's IEP. However, a significant change to federal law under IDEA-2004, concerns responsibility for providing special education services to eligible private school students who attend school in a district other than the one in which they live. Federal law now requires that the district where the private school is located - rather than the district of residence - fulfill the requirements for child find and for provision of proportionate share services. State law and practice, however, still require the school district where the student resides to provide special education and related services under Massachusetts' higher standard.

   With respect to a school district's special education responsibilities for private school students, the change in the federal law affects only students with disabilities who attend a private school outside of the district where they reside. Students who attend private schools located within their district of residence are unaffected by this new provision.

   The federal law's change in locus of school district responsibility for certain eligible private school students is intended to improve private school students' access to special education services by eliminating some of the logistical obstacles to student participation, as well as simplifying school districts' consultation with private schools.

   Current practice in Massachusetts requires the school district where the private school is located to conduct a portion of the federal child find activities by providing information about the availability of public special education services to all private schools located in the school district. This practice is consistent with and does not change as a result of IDEA-2004. The significant change in IDEA-2004 is the shift of responsibility for evaluating and providing services from the district where the student lives to the district where the private school is located. However, as described above, Massachusetts law mandates that the district where the student resides, rather than the district where the private school is located, is responsible for conducting the evaluation and proposing and providing special education services if the student is found eligible. Therefore, under state law, when an evaluation for special education eligibility is requested for a private school student, the student is referred to the district of residence.

   Implementing the federal change in locus of responsibility while continuing to provide private school students with the individual entitlement under state law would likely impose a significant and unanticipated financial burden on school districts in which non-resident students attend private schools. The Department will be reviewing the child count information we collect in the 2005-2006 school year to assess the impact in more detail.

   Additionally, one issue not clearly addressed in IDEA-2004 concerns services to private school students who are not residents of Massachusetts. The shift in location of responsibility in federal law may result in inquiries and requests for services from private school students who are not residents of Massachusetts but who attend private schools located in Massachusetts. The federal grant for Massachusetts is calculated on the basis of identified students who are Massachusetts residents, and students who reside outside of the Commonwealth are not included. Consequently, no "proportionate share" calculation can be made for these students. For this reason, the Department has determined that at this time, Massachusetts' public school districts are not required to serve out-of-state residents who attend private school in Massachusetts. These students and their parents should be advised to contact their school district of residence about the availability of special education services. This paragraph is deleted and replaced by Advisory 2006-5.

3. Activities to Demonstrate Compliance with State and Federal Requirements for Special Education Services for Parentally Placed Private School Students

   Beginning with the 2005-2006 school year, the Department expects school districts to maintain current practice of providing special education and related services to all eligible students who reside in the district, including those who attend private schools within or outside of the district. The school district of residence must evaluate private school students upon referral to determine eligibility, and develop and implement IEPs for eligible students that provide for special education and related services that are comparable in quality, scope and opportunity for participation to those provided to public school students.

   Listed below are the procedures that school districts are expected to follow in order to ensure that all private school students are accurately counted and provided with an equitable opportunity to participate in publicly funded special education services. Also included below are changes in practice that Massachusetts will require districts to comply with beginning with the 2005-2006 school year. These activities will enable private school students to receive special education benefits and school districts to meet their obligations under state and federal law.

   1. Child Find

      Consistent with past practice, school districts must conduct child find activities to identify and locate children with disabilities who attend private school in the district. Federal law requires that child find activities for private school children be comparable to those conducted for students in public schools.

   2. Evaluation

      School districts must evaluate for special education eligibility all students residing in the district if students are referred for evaluation. If you receive a referral to evaluate a student who lives in and attends a private school located in your district, you must evaluate that student and if the student is eligible, provide the student with special education and related services according to a properly developed IEP accepted by the parent. This requirement has not changed under IDEA-2004. In addition, consistent with current practice in Massachusetts, you must evaluate a student who lives in your district but attends a private school outside the community of residence if that student is referred to you for evaluation. Finally, if a student attending private school in your district is referred to you for evaluation but lives in another community, consistent with state law requirements, you should refer the student to the district of residence for evaluation.

   3. Developing the Individualized Educational Program (IEP)

      Consistent with current practice, state law requires the district of residence to develop an IEP and provide or arrange for appropriate special education and related services for all eligible students who live in the district. If you are developing an IEP for a private school student, a representative of the private school must be invited to participate as a member of the Team. The district of residence must provide genuine opportunities for all private school students living in your district to participate in the public school special education program, regardless of where they attend school.

   4. Providing or Contracting for Services

      Students with disabilities who are attending private schools, either within or outside of their community of residence, are entitled to equitable opportunities to participate in the publicly funded special education program. To carry out this responsibility and reconcile state and federal requirements for private school students attending private schools outside of their community of residence, school districts must make reasonable efforts to provide such students with access to services in the community where they go to school, as follows:

      1. Provide IEP services on site at the private school. You may use federal funds to provide services on site at the private school in order to improve access to services for the student. You are not limited to expending a proportionate share of federal funds, but may allocate federal funds as you choose to provide services at the private school. Private school organizations in the state have indicated that the majority of private schools would welcome the opportunity to facilitate students' access to services and will work cooperatively with you to do so.

      2. Provide IEP services at a public or neutral site convenient to the private school. You may use any combination of state, federal, and local funds to provide services at a public school or at another public or neutral site close to the private school that the student attends.

      3. Contract with others to provide the IEP services at an appropriate site. You may contract with the public school district where the private school is located to provide services to the student. The district where the private school is located also may be able to help you identify local service providers (individuals, community agencies or other organizations) and neutral sites where services can be provided in that community. Additionally, educational collaboratives may be a key resource for providing services to this student population because they routinely serve students across many districts' geographic areas. An educational collaborative may be able to serve the student in a location convenient to the private school that the student attends.

      For students attending private schools outside of the district of residence, if, after making reasonable efforts to provide services to the private school student in the community where the private school is located, you determine that no such arrangements are feasible, you may serve the student in your district. Consider whether the district must provide the student with transportation in order to ensure that the student has access to the necessary services.

   5. Due Process Protections

      Under state law, eligible private school students and adults acting on their behalf are entitled to use the Department of Elementary and Secondary Education's Problem Resolution System. If a private school student is having difficulty working with the district of residence to obtain an evaluation or necessary services, the student, the parent, the private school or another interested party can seek assistance from the Department in resolving the problem. Also, students and parents are entitled to initiate action by the Bureau of Special Education Appeals on any matter related to evaluation or special education services.

   6. Ensure an Accurate Count of Eligible Parentally Placed Private School Students

      The SIMS October Summary Report requires you to report to the Department the number of eligible private school students for whom you are providing special education and related services. This information is used to calculate the Federal Part B grants to the local districts. To ensure accuracy in the upcoming Report, please:

      1. Use code DOE11 (Reason for Reporting) and identify the student as a resident of the district by choosing "01."

      2. In code DOE15 (School Identification Number), please enter the school code 08990000 for all private school students.

      3. In code DOE32 (Special Ed - Private Placement), choose "01" to identify the student as a private placement enrolled in a private school by the parent or guardian.

      4. In order to have an accurate accounting of private school students in Massachusetts who are attending schools outside of their district of residence, the Department will request each school district to respond to a single page data request related to eligible private school students. You will receive this reporting request in a separate mailing, concurrent with the October SIMS data collection. We appreciate your cooperation in responding to this information request.

   7. Calculate and Document Proportionate Share (Added in Revision 5/12/06)

      Additional guidance provided by the U.S. Office of Special Education Programs has clarified the responsibility of districts to calculate the proportionate share of federal funds that must be spent on eligible private school students each year and to document the expenditure of federal funds for this purpose. Both the calculation and the documentation are described in Special Education Advisory 2006-5 with a form provided for this purpose (at: Administrative Special Education Advisories - Special Education).

We hope this guidance assists special education administrators and other interested parties in understanding these requirements and in ensuring that local practices for the 2005-2006 school year are consistent with state and federal law.

The Department has communicated with the U.S. Department of Education, Office of Special Education Programs (OSEP) about Massachusetts' specific requirements concerning special education for private school students and how they differ from federal requirements under IDEA-2004. We are providing to OSEP a copy of this advisory on how Massachusetts school districts are meeting their obligations under state and federal law. If upon review OSEP makes additional recommendations, we will notify school districts promptly.

If you have any questions or require additional information, please contact Program Quality Assurance Services at the Department of Elementary and Secondary Education (781-338-3700). If you have any questions about appropriate submission of data in relation to these students, please contact Audrey Gallo at (781) 338-3588. Thank you for your cooperation and your service to students.