Dated April 16, 2001

Honorable Rosa L. DeLauro

House of Representatives

Washington, DC 20515-3661

Dear Representative DeLauro:

This is in response to your letter on behalf of your constituent, Mayor
Frederick L. Lisman of Milford, Connecticut. In his letter, Mayor Lisman
asks you to respond to issues raised in a letter from John Fowler,
Alderman in the City of Milford, regarding the "ramification of using
non-federal dollars" (from the City of Milford, Connecticut ) to help
pay for special education and related services for children with
disabilities enrolled in private schools by their parents.

Under Part B of the Individuals with Disabilities Education Act (Part B
of the IDEA), each State and school district must make a free
appropriate public education (FAPE) available to all children with
disabilities in the mandatory age ranges who reside in the State. The
Office of Special Education Programs (OSEP) within the Department of
Education is responsible for administering Part B of the IDEA.

If the public agency has made FAPE available to a child with a
disability, and the parents reject the offer of FAPE in favor of placing
their child in a private school, Part B does not require the public
agency to pay for the child\'s education at that private placement.
[See]{.underline} 20 U.S.C. §1412(a)(10); 34 CFR §300.403(a). Part B
only requires a local educational agency (LEA) to contribute on a
specific proportionate formulaic toward the special education and
related services to children with disabilities whose parents place them
in a private school. 20 U.S.C. §1412(a)(10).

In his letter, Alderman John Fowler indicated that "special education
services to private school children are likely to be cut next year by
two-thirds" in Milford due in part to "the belief that providing
services to private school children above the per-capita federal grant
allocation may expose the public school system to liabilities. . . ."
The nature of the "liabilities" and the basis of this belief are unclear
from the letter but we read this as suggesting two possible
interpretations.

If the concern by the LEA is that children with disabilities may not be
provided special education and related services such as speech or
occupational therapy in parochial private schools, this is not correct.
Under the U.S. Supreme Court decision in *Zobrest*, there is no absolute
prohibition under the First Amendment religious establishment clause of
the U.S. Constitution on providing such services in a parochial school
environment. The attached five OSEP policy letters also clarify some of
the issues raised in the *Zobrest* decision: (1) 1993 Letter to Moore,
20 IDELR 1213; (2) 1993 OSEP Letter to Schmidt, 20 IDELR 1224; (3) 1994
Letter to McConnell, 22 IDELR 369; (4) 1994 Letter to Anonymous, 21
IDELR 745; and (5) 1995 Letter to Anonymous, 22 IDELR 889.

If the concern by the LEA is that it cannot pay for more than the
minimum amount required under the IDEA, that concern is incorrect. While
it is true that effective with the IDEA Amendments of 1997 and the
regulations promulgated under it (which were effective as of May 11,
1999), an LEA is not required to pay beyond a specific formula for
children who are parentally placed in private or parochial schools, it
may choose to do so. Public agencies must provide for participation in
their special education programs for children with disabilities placed
in private schools by their parents in accordance with the requirements
of Part B at section 612(a)(10)(A). However, students with disabilities
parentally placed at private schools do not have an individual
entitlement to services under Part B or the right to receive the same
services that they would be provided if educated in a public school
program or placement. Further, the Department\'s long-standing position
is that public agencies are not required to provide parentally placed
students with disabilities with the full range of services under Part B.
However, to the extent consistent with the number and location of such
children, special education and related services must be made available
for the children by the State, via the local school districts, through
expenditures that are equal to a proportionate amount of the available
funds under Part B. The formula used to meet this requirement is at 34
CFR §300.453. In determining the extent of participation of parentally
placed private school children with disabilities in special education
programs conducted by the local school districts, public agencies are
obligated to consult with representatives of these students in
considering which private school students with disabilities will receive
services, what services will be provided, and how those services will be
provided. [See]{.underline} 34 CFR §300.454.

In his letter, Alderman Fowler stated that the city of Milford is
currently providing more services to children with disabilities who are
placed in private schools by their parents than is required under Part
B. This is not prohibited under Part B, and is allowable at the option
of the State or local school district. There is nothing in Part B that
would prohibit a school system from using non-Federal dollars to provide
special education services for children who are parentally placed in
private schools. Alderman Fowler also asked if there are any additional
liabilities to the City of Milford if Milford adds funds to the Federal
funds available under Part B to provide special education and related
services to children with disabilities who are parentally placed in
private schools.

If in future years the City of Milford discontinued its funding, then
the LEA may be required to continue this level of non-Federal funding in
the future (although it would not be required to continue to spend the
funds on private schools). The Part B "maintenance of effort"
requirement applies to LEAs. [See]{.underline} 34 CFR §300.231. To meet
the Part B maintenance of effort requirements, "the total or per capita
amount from local funds only or the combination of State and local funds
budgeted by an LEA for expenditures in the current fiscal year for the
education of children with disabilities must be at least equal to the
total amount or per capita amount from local funds only or the
combination of State and local funds actually expended for the education
of children with disabilities in the most recent preceding year for
which information is available." [See]{.underline} 34 CFR §300.231(c)

If the City of Milford were to provide the funds directly instead to
parochial schools serving children with disabilities or their parents
rather than to the LEA, there may be other potential legal constraints
under the First Amendment religious establishment clause of the U.S.
Constitution and provisions under Connecticut's State constitutional or
other laws. The U.S. Supreme Court opinion in *Mitchell v. Helms*,
incorporates the latest analysis on the First Amendment clause of the
U.S. Constitution.

Given the complexity of these issues, the City of Milford and Alderman
Fowler should consult with the city's legal counsel regarding the
viability and ramifications of either option as to the use of City funds
to supplement Federal Part B funds for children with disabilities placed
by their parents in parochial schools.

I hope that this information is helpful in responding to Alderman
Fowlers' concerns. I have enclosed a copy of the Part B regulations, the
*Zobrest* and *Helms* Supreme Court decisions, and the OSEP policy
letters that discuss application of the *Zobrest* decision for your and
Alderman Fowler's review. Please let me know if I can be of further
assistance.

> Sincerely,
>
> /signed Patricia J. Guard/
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education
>
> Programs

Enclosures