Dated July 1, 2003

I am writing in response to a series of letters you have written to the
Department. I hope the following information is helpful.

Your main question throughout these letters appears to be whether there
is an entitlement under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1400 et seq., which would allow parents to choose
any private school that is part of a choice program, and have special
education and related services provided at that school.

In your letters, you cite the provision in 34 C.F.R. § 300.552(c), which
requires that each public agency ensure that "unless the IEP of a child
with a disability requires some other arrangements, the child is
educated in the school he or she would attend if nondisabled."

I first note that 34 C.F.R. § 300.552(c) was developed in the context of
special education programs within local education agency (LEA) schools,
and not choice programs. However, even with regard to LEA programs, the
IDEA does not require that LEAs make all services needed by all students
with disabilities available at all locations.

Moreover, the IDEA does not require that private schools provide special
education and related services that meet the needs of all students with
disabilities, and it does not require that States certify all private
schools to provide services to all students. In [Letter to
Reedy]{.underline}, 16 IDELR 1364 (OSEP 1990), the Office of Special
Education Programs responded to the question of whether private schools
serving students in Vermont are "bound by the same admission and
discipline policies that apply to public schools." OSEP explained that
"if a private school or facility is unable or unwilling to provide an
appropriate educational program for a child who is disabled, the public
agency remains responsible for providing, or ensuring the provision of,
a FAPE to that child, either by locating another appropriate private
school placement for the child or by educating the child in a public
agency program."

The United States Court of Appeals for the Second Circuit agreed with
the policy in [Letter to Reedy]{.underline} that private schools are not
subject to the same admission policies that apply to public schools.
[St. Johnsbury Academy v. D.H. et. al.]{.underline}, 240 F.3d 163 (2^nd^
Cir. 2001). In [St. Johnsbury Academy]{.underline}, a parent contested a
private school's policy that students had to perform at or above the
fifth grade level before being assigned to the Academy's ninth grade
mainstream academic classes. The Court held that, although the public
school was responsible for making a free appropriate public education
(FAPE) available to the student (which in Vermont was done by paying
students' tuition at private schools or schools outside the district),
that particular private school was not required to change its policy to
ensure that the student was able to receive FAPE at that school.

I will also address your request that this Department review the State's
response to the issues we forwarded to the State for review, pursuant to
its State complaint procedures under 34 CFR §§ 300.660 -- 300.662, in a
letter dated February 26, 2003. Although the complaint procedures
applicable to Part B of the Individuals with Disabilities Education Act
(Part B), prior to May 11, 1999, included a provision that after a
complaint had been filed with the State and the State had acted on it,
either party to the complaint could request the U.S. Secretary of
Education to review the State's final decision; on March 12, 1999, new
final regulations were published that no longer include a Secretarial
review process. The new regulations became effective May 11, 1999, so
the Secretarial review process is no longer available. As with other
issues raised under the IDEA, if you disagree with the response from the
State, you may take advantage of the procedures for the filing of a due
process hearing under the IDEA. If you wish the State to address
additional issues, you may file a new complaint with the State.

In your April 22, 2003 letter to Ms. Jill Harris you also ask about
services plans. Contrary to the statements in your letter, school
systems are not required to prepare services plans for all children with
disabilities placed in private schools by their parents. Instead, under
34 CFR § 300.455(b), services plans are prepared only for private school
children with disabilities who are designated to received services under
34 CFR § 300.452. If you wish to raise the issue of a services plan for
a student who has been designated to receive services, you may file a
complaint with the State.

Finally, in response to your question, the Office of Civil Rights (OCR)
address where we sent the February 26, 2003 letter is:

> U.S. Department of Education
>
> Office for Civil Rights
>
> 330 C Street, S.W.
>
> Washington, D.C. 20202

As you requested, we are forwarding a copy of your February 27, 2003
letter to OCR, along with a copy of this letter.

I hope this information is helpful.

> Sincerely,
>
> /s/ Patricia J. Guard for
>
> Stephanie S. Lee
>
> Director
>
> Office of Special Education Programs

cc: Vermont Department of Education

U.S. Department of Education, Office for Civil Rights