Administrative Advisory SPED 2007-2:
IDEA-2004 and Private School Students (Updated July 2008)
|To:||Special Education Administrators, Educational Collaborative Directors, and Other Interested Parties|
State Director of Special Education
|Date:||May 4, 2007 (updated July 2008)|
The Massachusetts Department of Elementary and Secondary Education is issuing this advisory in response to correspondence and instruction from the U.S. Department of Education's Office of Special Education Programs (OSEP)1 about Massachusetts' efforts to reconcile state and federal obligations for serving eligible students attending private schools in Massachusetts at private expense2 ("private school students" or "parentally-placed private school students"). This advisory describes all requirements and procedures regarding parentally placed private school students. Please note that this advisory replaces previously issued guidance, formerly 2006-3R and 2006-5, now withdrawn.
Requirements in the federal Individuals with Disabilities Education Improvement Act (IDEA-2004) for providing special education services to eligible private school students differ from those in Massachusetts' law. As described more fully below, state law requires districts to create Individualized Education Programs (IEPs) for all eligible Massachusetts students that provide for genuine opportunity to participate in the public school program, whereas federal law requires that districts spend a proportionate share of their federal grant on services for eligible private school students using service plans. Also, state law assigns responsibility to the district where the student lives rather than the district where the private school is located, as is now required under federal law.
The Massachusetts Department of Elementary and Secondary Education has been working with school officials, representatives of private schools, and OSEP to ensure that our requirements for serving eligible private school students in Massachusetts are responsive to federal and state special education laws and meet the needs of private school students while minimizing administrative burdens for schools and districts. The purposes of this Advisory are to inform special education administrators and other interested parties about the state and federal requirements (Part I below); explain how they differ (Part II); and describe the procedures that school districts must follow regarding child find, evaluation, consultation, and proportionate share calculations to demonstrate compliance regarding all private school students who attend schools located within the geographical boundaries of Massachusetts school districts (Part III).
State and Federal Requirements to Provide Special Education Services to Parentally Placed Private School Students
Massachusetts' special education law applies to all Massachusetts residents, regardless of where they attend school. It requires school districts to offer special education and related services to all students who reside in the district,3 including parentally-placed private school students.4 Special education and related services must be designed to meet the needs of eligible students and must provide students with a genuine opportunity to participate in the 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 in 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.5 Schools may provide services at the private school if only federal funds are used. 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,6 and must be described in a properly developed IEP. Eligible private school students have individual rights and full access to the state due process procedures.7
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 mandated in state law. Under IDEA-2004 school districts must conduct child find activities and evaluations to determine students' eligibility for special education.8 In contrast to state law that requires all eligible students to have an IEP, federal law requires school districts to expend only a proportionate share of the federal money districts receive under Part B of IDEA to provide services to parentally-placed private school students.9 "Proportionate share" means that the district must spend on services for private school students who attend a private school in the district an amount that represents the same proportion of its federal grant as these private school students represent within the population of disabled students served by the district as a whole.10
Following consultation with the private schools school districts must determine which services to provide with that proportionate share of funds. Districts provide these services to eligible private school students through an "individual services plan" instead of an IEP,11 and private school students do not have an individual entitlement to services under federal law. The federal due process protections, including the entitlement to an IEP and the right to a hearing, do not extend to private school students under IDEA-2004.12 Also, residents of other states attending private school in Massachusetts are entitled to services according to federal law13 and do not have an individual entitlement to services based upon state law.
Reconciling the Differences Between State and Federal Requirements for Private School Students
The federal and state special education requirements have been easy to reconcile in the past because complying with the higher standard of individual entitlement under Massachusetts' law allowed school districts to meet the federal proportionate share requirement for providing special education services to eligible private school students. Also, school districts have consulted with the private schools, as required by federal law, because districts invite private school representatives to participate in the Teams that develop the IEPs for all private school students residing in the district.
A significant change to federal law under IDEA-2004, however, 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 proportionate share services.14 This change 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. Now the district where a private school is located must meet federal special education requirements for all students who attend a private school located in the geographic boundaries of the district, regardless of where those students live.
State law, however, still requires the school district where the student resides to provide special education and related services under Massachusetts' higher standard and as described in an IEP. Massachusetts residents must continue to receive full special education services, including evaluation and IEPs, as appropriate, from the district in which they live. Therefore, when an evaluation for special education eligibility is requested for a Massachusetts resident who attends a private school, the student must be referred to the district of residence. State law requires the district of residence to evaluate all students who live in the district who are referred for evaluation, regardless of where they attend school.
For non-Massachusetts residents attending private schools in Massachusetts, the school districts where the private schools are located must conduct child find, evaluate, and determine proportionate share services for all non-resident students according to the requirements of IDEA-2004. The section below describes more specifically how districts may comply with the state and federal special education requirements for private school students who live in or attend a school located in the district.
Activities to Demonstrate Compliance with State and Federal Requirements for Special Education Services for Parentally Placed Private School Students
Child Find. School districts must conduct child find activities for all students attending school in the district, regardless of whether students attend public or private school and regardless of where they live, including students who live outside of Massachusetts but attend private schools in Massachusetts.15 Child find activities for private school students must be comparable to those conducted for students in public schools and must include providing private schools located in the district with information about how students can access publicly funded evaluation and special education services.16 These requirements are largely unchanged in IDEA-2004, and so districts already should be conducting these child find activities in all private schools located in the districts' geographic area.
Students who live in one Massachusetts district but attend school in another should still be referred to the district of residence for evaluation and services. This child find requirement is consistent with state law and is current practice in all Massachusetts districts.
Evaluation and Determination of Eligibility. As required by state law, Massachusetts school districts must evaluate and provide special education and related services to all eligible parentally-placed private school students who reside in the district, regardless of whether the students attend a private school located in that district or in another district. Also, IDEA-2004 requires that a school district must determine eligibility of out-of-state residents who attend a private school located in the district's boundaries if the students are referred for evaluation by the private school or the parents. The Massachusetts school district where the private school is located may conduct its own evaluation in a manner consistent with the requirements of state and federal law17 or may accept a prior evaluation conducted by the student's out-of-state district of residence if the evaluation information is current enough.
Eligibility for all students attending school in Massachusetts is determined using criteria based on the definitions of disability included in Massachusetts state law.18 Districts must report all eligible private school students to the Massachusetts Department of Elementary and Secondary Education according to Student Information Management System (SIMS) requirements, regardless of where they live. All eligible private school students, including out-of-state residents attending private school in Massachusetts,19 must receive a State Assigned Student Identifier (SASID).
Consultation. IDEA-2004 requires that public school districts ensure that private schools have opportunities to engage in "timely and meaningful" consultation about services provided to eligible private school students. This requirement is consistent with the private school consultation requirements under the No Child Left Behind Act (NCLB). Consultation requirements for Massachusetts resident students may be met in part through districts' current practice of working with representatives of the private schools as members of the Team developing students' Individualized Education Programs (IEPs). School districts also must engage in additional consultation with private school representatives about the special educational needs of eligible out-of-state resident students attending Massachusetts private schools.
Consultation must include the following:
- the child find process, including how parents, teachers, and private school officials will be informed of the process;
- the determination of the proportionate share of federal funds available to serve parentally-placed private school students with disabilities, including the determination of how the proportionate share of those funds was calculated; and
- how the consultation process will take place among representatives of the school district, private school, and parents.
Consultation about out-of-state residents who attend private school in Massachusetts must also include the following:
- how, where, and by whom special education and related services will be provided, including a discussion of types of services - direct services and alternate service-delivery mechanisms, as well as how such services will be apportioned if funds are insufficient to serve all students - and how and when these decisions will be made; and
- how, if the school district representatives disagree with the views of the private school officials on any aspect of services for eligible out-of-state residents, the district will provide to the private school officials a written explanation of the reasons why the LEA chose not to adopt the recommendations of the private school officials. 20
Determination of Proportionate Share. IDEA-2004 requires that school districts spend a proportionate share of their federal Part B grant on providing special education and related services, including direct services, to parentally-placed private school students with disabilities enrolled in private schools located in the district.21 "Proportionate share" is an amount that represents the same proportion of the district's federal grant as the proportion of eligible private school students represent within the entire population of disabled students served by the district.22 All Massachusetts districts must calculate the proportionate share and demonstrate upon request that they have spent this amount of federal funds on eligible parentally-placed private school students who are enrolled in private schools located in the district.
To calculate proportionate share, the district must know:
- the total IDEA Part B funds received by the district under Fund Code 240 in a fiscal year;
- the number of eligible parentally-placed private school students attending private school in the district, which includes
- students who live in the district and attend private school in the district;
- students who live in another Massachusetts district but attend a private school in the district;23 and
- out-of-state students who attend a private school located in the district; and
- the number of eligible public school students who live in the district.
The proportionate share may be calculated and documented using the worksheet provided in Attachment A to this advisory. Following is an example of a proportionate share calculation:
A public school district (Anytown District) has four (4) eligible private school students enrolled in private schools within the geographic boundaries of the district. Two (2) are district residents, one (1) lives in another Massachusetts town,24 and one (1) lives in another state. The public school also serves 396 eligible public school students who reside in and are enrolled in the district.
Anytown district also serves five (5) resident students who are enrolled in private schools located in other districts, as required by state law. These students are, however, not included in Anytown district's proportionate share calculation. Rather, these students must be included in the proportionate share computation for the districts in which the private schools they attend are located.
The total number of eligible public and private school students enrolled in public or private schools in Anytown district is 400. This includes the four private school students referred to above, and 396 eligible public school students. The district's proportion of eligible parentally-placed private school students to all eligible students is 4:400 or 1%.
Anytown district received $123,000 under Fund Code 240, its federal Part B entitlement grant. Because the proportion of private school students with disabilities is 1% of all students with disabilities, the "proportionate share" of the federal special education funds is 1% of the total grant of $123,000, or $1,230.
Anytown district must spend at least $1,230 of its federal grant on services25 for parentally-placed private school students who are attending private schools in the district in order to meet its proportionate share obligation under IDEA-2004. In this case, although there are four (4) private school students counted in the proportionate share calculation, only three (3) of them are being served by Anytown district. The fourth student receives services from the district where he/she lives, consistent with Massachusetts law. Therefore, the $1,230 must be spent on services for one or more of the three (3) private school students attending private schools in Anytown district and served by Anytown district.
As noted above, for the purposes of calculating proportionate share, students who attend private schools located in a district other than the one where they live are not included in the calculation of, or spending of, proportionate share funds by the district of residence. This is true even though the district of residence creates the students' IEPs, provides special education and related services to them, and reports them to the Department. These students must be included in the proportionate share calculation of the district where the private schools they attend are located.
To make sure that districts have correct information about private school enrollment to compute proportionate share accurately, districts of residence must report the numbers of eligible students attending private schools in other towns to the districts where those private schools are located. This communication should be limited to the number of students attending the private school outside of the district of residence, and may not include personally identifiable information about those students.26
Expenditure of Proportionate Share. Under the federal law, school districts determine which services to provide with the proportionate share of federal funds following consultation with representatives of the private schools located in the district and parents of eligible students.27 The district may use the entire federal proportionate share on only one eligible student or may decide to allocate an amount for services for more than one or all of the students. Because Massachusetts state law requires school districts to provide services according to an IEP to eligible Massachusetts residents who attend private schools, districts may not limit their spending of special education funds for Massachusetts residents to only services that can be provided with the proportionate share. Regardless of the higher standard for Massachusetts residents attending private school, all districts must still calculate proportionate share and be able to demonstrate how they have spent sufficient federal funds on special education services for private school students.
Because out-of-state residents attending private schools in Massachusetts do not have an individual entitlement to services, eligible out-of-state resident students may not necessarily receive proportionate share services and, in such cases, will not receive special education services from the Massachusetts district where the private school is located. The Department recommends that the district make available the data it has used in calculating proportionate share and information demonstrating whether its proportionate share obligation has been met. The district may use the attached form (Attachment A ) to document its calculation of and spending of the proportionate share of federal funds. Also, appended to this advisory (Attachment B ) is a sample letter that districts may use to notify parents of eligible non-Massachusetts residents attending private schools here of the districts' decision not to make services available because the required federal proportionate share obligation has been met.
Development of Services Plans. If the school district provides services to non-Massachusetts residents attending private schools in Massachusetts, either using proportionate share funds for that student or other resources at its own election, the district is required to develop an individual services plan for the student describing the types of services it will provide and where services will be delivered. A sample services plan is included as Attachment C . Services plans must describe the specific special education or related services that the district where the private school is located will provide to the student, but are not the same as IEPs. Unlike the process for creating an IEP, the district does not need to convene a Team to create the plan. Districts may offer a representative of the student's private school the opportunity to participate in meetings at which the services plan is discussed, but are not required to do so as long as the private school has been consulted about the services as described in Section III.C. above. Also, services plans do not confer an individual entitlement to special education and related services.
Additionally, IDEA-2004 does not require that a parent provide written consent to a services plan. Though a parent may refuse services proposed in a services plan, out-of-state residents are not entitled to due process protections to challenge the sufficiency of the proposed services or the districts' actions.
Providing or Contracting for Services. Massachusetts resident 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 as required by state law. 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 students with access to services in the community where they go to school. Reasonable efforts include the following:
Provide IEP services on site at the private school. Districts may use federal funds to provide services on site at the private school in order to improve access to services for the student. Because Massachusetts state law requires school districts to provide services according to an IEP to eligible Massachusetts residents who attend private schools, districts may not limit their spending of special education funds for Massachusetts residents to only services that can be provided with the proportionate share and may allocate additional federal funds 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.
Provide IEP services at a public or neutral site convenient to the private school. Districts 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.
Contract with others to provide the IEP services at an appropriate site. Districts 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 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, the district determines that no such arrangements are feasible, the district may serve the student in the district.28 The district may need to provide the student with transportation29 in order to ensure that the student has access to the necessary services.
Due Process Protections. Under state law, eligible private school students who are Massachusetts residents and/or adults acting on their behalf are entitled to use the Department of Elementary and Secondary Education's Problem Resolution System.30 If a private school student is having difficulty working with the district of residence to obtain an evaluation or necessary services, then the student, the parent, the private school or another interested party can seek assistance from the Department in resolving the problem. Also, students residing in Massachusetts and their parents are entitled to file a request for hearing or mediation with the Bureau of Special Education Appeals on any matter related to evaluation or special education services.31 Under federal law, due process is not available to private school students who do not reside in Massachusetts, except for complaints related to child find.
We hope this guidance assists special education administrators and other interested parties in understanding these requirements and in ensuring that local practices are consistent with state and federal law. A summary chart of the obligations of districts is included as Attachment D .
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 data collection at (781) 338-3282. Thank you for your cooperation and your service to students.
- Letterfrom OSEP, dated 3/9/07 at: Correspondence with the Office of Special Education Programs (OSEP) webpage
- This term includes students in parochial or independent schools, but does not include students placed by their parents in private special education schools who are seeking public tuition for such programs. This advisory does not address the different requirements that apply in the latter circumstance.
- M.G.L. c. 71B, Section 3.
- St. 1999, c. 127, Section 258; 603 CMR 28.03(1)(e).
- 603 CMR 28.03(1)(e)(3).
- 603 CMR 28.03(1)(e)(4).
- Additional information regarding the state's entitlement to special education and related services for private school students is found in Special Education Guidance on Providing Special Education Services for Students Attending Private Schools at Private Expense issued in February 2000.
- 20 U.S.C. § 1412(a)(10)(A); 34 CFR § 300.131.
- These general provisions, which were included in IDEA-1997 and the 1999 regulations, are also included in IDEA-2004, codified at 20 U.S.C. § 1400 et seq. and 34 CFR Part 300. Please note that additional citations to federal law in this memorandum will be to the federal regulations, unless otherwise indicated.
- 20 USC § 1412(a)(10)(A).
- 34 CFR §§ 300.132(b), 300.137-300.139.
- 34 CFR § 300.140.
- 34 CFR § 300.131(f).
- 34 CFR § 300.131.
- 34 CFR § 300.131(f).
- 34 CFR § 300.131.
- See 603 CMR 28.04 and 20 U.S.C. § 1414.
- See 603 CMR 28.02(2).
- Any out-of-state student seeking public special education services must receive a SASID and be reported for the year during which evaluation was conducted or services were sought, regardless of whether or not the student is offered special education services. 34 CFR § 300.132(c).
- 34 CFR § 300.134(d-e).
- The federal regulations regarding expenditure of proportionate share funds make clear that state and local funds may be used to supplement but not supplant the required expenditure of federal funds. 34 CFR § 300.133(d). This means that districts are required to expend the proportionate share of federal funds for private school students, rather than spend funds from any source in that amount for this population of students. Districts must maintain proportionate share documentation (both calculation and spending documentation) for review by the Department of Elementary and Secondary Education upon request.
- 34 CFR § 300.133(a).
- Students who live in the district (District A) but attend private school in another district (District B), are not counted in the calculation of the proportionate share by District A; rather, they must be counted by District B. District A must notify District B of the number of District A residents who attend private schools located in District B.
- Students who live in one Massachusetts district, but attend private school in another district must be counted for the proportionate share in the district where they attend private school, even though they are served by the district where they live.
- As noted above, the school district cannot include the costs of conducting child find activities and evaluating students in determining whether the district has met its proportionate share obligations under federal law. 34 CFR § 300.131(d).
- See the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g and 34 CFR Part 99, and IDEA-2004, 34 CFR §§ 300.610-300.627, for information regarding non-disclosure of personally identifiable student information without consent.
- See Part C above.
- Students served in the district may receive services at the public school or in another public or neutral setting.
- The cost of transportation may be included in calculating whether the district has met the proportionate share obligation. 34 CFR § 300.139(b)(2).
- Problem Resolution System webpage.
- Bureau of Special Education Appeals (BSEA) webpage.