IDEA--Reauthorized Statute

**CHILDREN ENROLLED BY THEIR PARENTS\
IN PRIVATE SCHOOLS**

The reauthorized *Individuals with Disabilities Education Act* (IDEA)
was signed into law on Dec. 3, 2004, by President George W. Bush. The
provisions of the act became effective on July 1, 2005, with the
exception of some of the elements pertaining to the definition of a
"highly qualified teacher" that took effect upon the signing of the act.
This is one in a series of documents, prepared by the Office of Special
Education and Rehabilitative Services (OSERS) in the U.S. Department of
Education, that covers a variety of high-interest topics and brings
together the statutory language related to those topics to support
constituents in preparing to implement the new requirements.[^1] This
document addresses only the changes to the provisions of IDEA regarding
children with disabilities enrolled by their parents in private schools
that took effect on July 1, 2005. It does not address any changes that
may be made by the final regulations.

# IDEA 2004:

# 1. Defines the manner in which services are provided to children enrolled in private schools.

To the extent consistent with the number and location of children with
disabilities in the state who are enrolled by their parents in private
elementary schools and secondary schools ***in the school district
served by a local education agency (LEA)***, provision is made for the
participation of those children in the program assisted or carried out
under the requirements of Part B by providing for such children special
education and related services in accordance with Section 612(a)(10)
unless the secretary has arranged for services to those children under
Section 612(f). \[612(a)(10)(A)(i)\]

# 2. State and local funds must supplement and not supplant proportionate amount.

State and local funds may supplement and in no case shall supplant the
proportionate amount of federal funds required to be expended under
Section 612(a)(10)(A). \[612(a)(10)(A)(i)(IV)\]

# 3. Requires maintenance of records on number of children evaluated and number found eligible as part of child find.

Each LEA shall maintain in its records and provide to the SEA the number
of children evaluated under Section 612(a)(10)(A), the number of
children determined to be children with disabilities, and the number of
children served under Section 612(a)(10)(A). \[612(a)(10)(A)(i)(V)\]

**4.** **Adds requirements for the provision of services to this
population.**

The provision of services pursuant to Section 612(a)(10) shall be
provided by employees of a public agency; or through contract by the
public agency with an individual, association, agency, organization, or
other entity. \[612(a)(10)(A)(vi)\]

**5.** **Adds requirements for control of funds and property.**

The control of funds used to provide special education and related
services under Section 612(a)(10), and title to materials, equipment,
and property purchased with those funds, shall be in a public agency for
the uses and purposes provided in IDEA, and a public agency shall
administer the funds and the property. \[612(a)(10)(A)(vii)\]

# Child Find:

# 6. Requires child find in private schools.

In calculating the proportionate amount of federal funds, the LEA, after
timely and meaningful consultation with representatives of private
schools as described in Section 612(a)(10)(A)(iii), shall conduct a
thorough and complete child find process to determine the number of
parentally placed children with disabilities attending private schools
located in the LEA. \[612(a)(10)(A)(i)(II)\]

# 7. Equitable participation.

The child find process shall be designed to ensure the equitable
participation of parentally placed private school children with
disabilities and an accurate count of such children.
\[612(a)(10)(A)(ii)(II)\]

# 8. Activities.

In carrying out Section 612(a)(10)(A)(ii) \[child find requirements\],
the LEA, or where applicable, the state education agency (SEA), shall
undertake activities similar to those activities undertaken for the
agency's public school children. \[612(a)(10)(A)(ii)(III)\]

# 9. Cost.

The cost of carrying out Section 612(a)(10)(A)(ii) \[child find
requirements\], including individual evaluations, may not be considered
in determining whether an LEA has met its obligations under Section
612(a)(10)(A)(i). \[612(a)(10)(A)(ii)(IV)\]

# 10. Completion period.

Such child find process shall be completed in a time period comparable
to that for other students attending public schools in the LEA.
\[612(a)(10)(A)(ii)(V)\]

**Consultation:**

# 11. Adds additional consultation requirements.

To ensure timely and meaningful consultation, an LEA, or where
appropriate, an SEA, shall consult with private school representatives
and representatives of parents of parentally placed private school
children with disabilities during the design and development of special
education and related services for the children, including regarding:

-   The child find process and how parentally placed private school
    children suspected of having a disability can participate equitably,
    including how parents, teachers, and private school officials will
    be informed of the process;

-   The determination of the proportionate amount of federal funds
    available to serve parentally placed private school children with
    the disabilities under Section 612(a)(10), including the
    determination of how the amount was calculated;

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

-   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 types of services, including
    direct services and alternate service delivery mechanisms, how such
    services will be apportioned if funds are insufficient to serve all
    children, and how and when these decisions will be made; and

-   How, if the LEA disagrees with the views of the private school
    officials on the provision of services or the types of services,
    whether provided directly or through a contract, the LEA shall
    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.

\[612(a)(10)(A)(iii)\]

# 12. Requires written affirmation.

When timely and meaningful consultation as required by Section
612(a)(10)(A)(iii) has occurred, the LEA shall obtain a written
affirmation signed by the representatives of participating private
schools, and if such representatives do not provide such affirmation
within a reasonable period of time, the LEA shall forward the
documentation of the consultation process to the SEA.
\[612(a)(10)(A)(iv)\]

# 

# 13. Provides a right to complain to the SEA and appeal to the secretary.

A private school official shall have the right to submit a complaint to
the SEA that the LEA did not engage in consultation that was meaningful
and timely, or did not give due consideration to the views of the
private school official. \[612(a)(10)(A)(v)(I)\]

If the private school official wishes to submit a complaint, the
official shall provide the basis of the noncompliance with Section
612(a)(10)(A)(iii) by the LEA to the SEA, and the LEA shall forward the
appropriate documentation to the SEA. If the private school official is
dissatisfied with the decision of the SEA, such official may submit a
complaint to the secretary by providing the basis of the noncompliance
with Section 612(a)(10)(A)(iii) by the LEA to the secretary, and the SEA
shall forward the appropriate documentation to the secretary.
\[612(a)(10)(A)(v)(II)\]

[^1]: ^1^ Topics in this series include: Alignment With the *No Child
    Left Behind Act*; Changes in Initial Evaluation and Reevaluation;
    Children Enrolled by Their Parents in Private Schools; Discipline;
    Disproportionality and Overidentification; Early Intervening
    Services; Highly Qualified Teachers; Individualized Education
    Program (IEP) Team Meetings and Changes to the IEP; Individualized
    Education Program (IEP); Local Funding; National Instructional
    Materials Accessibility Standard (NIMAS); Part C Amendments in *IDEA
    2004*; Part C Option: Age 3 to Kindergarten Age; Procedural
    Safeguards: Surrogates, Notice and Consent; Procedural Safeguards:
    Mediation and Resolution Sessions; Procedural Safeguards: Due
    Process Hearings; Secondary Transition; State Funding; and Statewide
    and Districtwide Assessments. Documents are available on the OSERS
    Web site at: www.ed.gov/about/offices/list/osers/index.html.