Private School Students with Disabilities

 

Both federal and state law require public schools to provide a free appropriate education that is tailored to meet the individual needs of each student with a disability. However, many wonder if private schools, many of which do not receive federal funds, are obligated to provide the same special education.

 

Private schools are, in fact, obligated to provide special education and related services to students with disabilities. According to the Individuals with Disabilities Education Act, and the dual-enrollment provisions of the state Education Law, districts must provide special education and related services to parentally placed private school students with disabilities (20 USC § 1412(a)(10)(A)(i); 34 CFR §§ 300.129-144; Educ. Law §3602-c(2)).

 

It is important to note that a school district is not responsible for the tuition of a private school student with a disability unless the parents have placed the student in the private school because they disagree with the program or placement, recommended by the district, or the school has failed to provide a free appropriate education to their child.

 

Services provided to private school students with disabilities (including materials, and equipment) must be secular, neutral and non-ideological (20 USC § 1412(a)(10)(A)(vi)(II); 34 CFR § 300.138(c)(2)).

 

School Districts’ Responsibilities

 

In situations where the parents have voluntarily placed their child in a private school, the school district where the private school is located is responsible for complying the with the legal requirements related to the equitable provision of services to private school students with disabilities, including students who are not New York State residents.

 

These requirements include:

 

  • Child find activities
  • A timely and meaningful consolation with representatives of private schools located in their district and representatives of parentally places students with disabilities attending private school within their district
  • The evaluation and possible identification of private school students as a student with a disability
  • The development of an individualized education services program, or service program
  • The provision of services (20 USC § 1412(a)(10)(A); 34 CFR §§ 300.130-144; Educ. Law § 3602-c(2)(a), (2-a).
  • Obtaining parental consent (or consent from a student age 18 or older) for the exchange of personally identifiable information about the student between school officials of the student’s district of residence and the district of location (Educ. Law § 3602-c(2-a); 8 NYCRR § 200.2 (a)(7)(i)).

 

In New York, parents who voluntarily place their child in private school must submit a written request for services on or before June 1st of the preceding school year for when the request is made. However, parents of students who are first identified as a student with a disability, or moved into a district after the June 1st deadline have 30 days after this occurrence to submit their written request. In either case, April 1st is the last day in which a parent may request services for the current year (Educ. Law § 3602-c(2); 8 NYCRR § 177.1).

 

Requests for special education services for students with disabilities who have been placed into a private school voluntarily by the parents are reviews by the committee of special education of the school district where the private school is located (Educ. Law § 3602-c(2)(b), (2-b); see also Application of a Student with a Disability, SRO dec. no. 09-133 (2009)).

 

If the private school student is a New York state resident, and is deemed eligible for special education or related services, then the CSE will develop an individual education services program based on the student’s individual needs in the same manner and with the same contents as a public school’s individual education program (IEP). Services will be provided to the student on an equitable basis, as compared to the special education programs and services provided to other students with disabilities attending public or private schools within the district (Educ. Law § 3602-c(2)(b)).

 

If the private school student is not a New York resident, the CSE will develop a services plan for the student in accordance with federal law and regulations (Educ. Law § 3602-c(2-b)). This entails the use of a proportionate amount of federal funds made available by the Individuals with Disabilities Education Act, and timely, meaningful consultations with private school representatives and representatives of the (parentally placed) private school students with disabilities regarding the provision of these services (20 USC § 1412(a)(10)(A); 34 CFR §§ 300.130–300.144).

 

On-Site Special Education and Related Services

 

The federal Individuals with Disabilities Education Act allows school districts to provide special education services to students with disabilities on the premises of private schools, including parochial schools, so long as these services are consistent with federal law (20 USC § 1412(a)(10)(A)(i)(III); 34 CFR § 300.139(a)). In addition, the U.S Supreme Court has ruled that the federal constitution does not prevent a school district from providing services to students on the grounds of their parochial school (Agostini v. Felton, 521 U.S. 203 (1997)).

 

According to New York’s dual-enrollment law, nonpublic school students with disabilities are allowed to participate in special education programs on an equitable basis (Educ. Law § 3602-c(2)(b)(1)). However, this law does not obligate school districts to provide services at a nonpublic school for each student (Bd. of Educ. of Bayshore UFSD v. Thomas K., 14 N.Y.3d 289 (2010)). Still and yet, a school district must provide on-site special education related services at non-public schools to students whose education needs require on-site provision of such services, including the provision of a one-on-one aide (Id.).

 

For information on the roles and responsibilities of one-to-one aides and factors to consider when deciding to assign one, see NYS Education Department, Guidelines for Determining a Student with a Disability’s Need for a One-to-One Aide (updated Jan. 2014), at:

 

http://www.p12.nysed.gov/specialed/publications/1-1aide-jan2012.htm

 

Some districts express concern about private schools within their boundaries recovering costs for providing services for students with disabilities attending these schools. Fortunately, school districts where private schools are located that provide special education related services to non-resident students who are New York State residents may recover the costs of their services, evaluation, and committee on special education administration directly from a student’s school district of residence (if parental consent is obtained for the release of personally identifiable information about the student). If a district is unable to obtain parental consent to release personally identifiable information, they may submit a claim to the commissioner of education and, upon certification of the claim by the commissioner, the state comptroller will deduct the amount of the claim from any state funds due to the student’s school district of residence (Educ. Law § 3602-c(7)(b); NYS Education Department, Guidance on Reimbursement Claims for the Cost of Providing Special Education Services to Parentally Placed Nonresident Students Pursuant to Education Law Section 3602-c (June 2008), at:

 

http://www.p12.nysed.gov/specialed/publications/policy/reimbursement608.htm

 

The amount charged by the district of location may not exceed the actual cost to that district after deducting any costs paid with federal or state funds (Educ. Law § 3602-c(7)(c); Guidance on Reimbursement Claims for the Cost of Providing Special Education Services to Parentally Placed Nonresident Students Pursuant to Education Law Section 3602-c). There are times where disputes between districts over costs and reimbursements occur. Disputes over the amount of tuition or costs charged by the district of a student’s location must be resolved by the resolution process established in the commissioner’s education (Educ. Law § 3602-c(7)(c); 8 NYCRR § 177.2).

 

More information on the issues of costs and reimbursement can be found at NYS Education Department, Addition of Section 177.2 of the Regulations of the Commissioner of Education Relating to Disputes of Reimbursement Claims for Special Education Students Provided to Nonresident Parentally-Placed Nonpublic School Students with Disabilities (Dec. 2008), at:

 

http://www.p12.nysed.gov/specialed/publications/policy/section1772-nonpublic.htm

 

Other Notes on Special Education

 

Parents of private school students, including those who are out-of-state students, may present a due process complaint and request a due process hearing regarding the alleged failure of a school district to comply with its child find responsibilities, which include evaluating, and determining the eligibility of a student for special education and related services (Educ. Law § 3602-c(2)(c), (2-b)).

 

It is also important to note that home-schooled students with disabilities are considered to be nonpublic schools. However, this is solely for the purpose of receiving special education and a school’s computation of the state aid for such special education. To be eligible for special education and related services, the student must be entitled to attend public school tuition free, and have an individualized home instruct plan that has been determined to be in compliance with the commissioner’s regulations by the superintended of the district where the home school is located (§ 3602-c(2-c). Additional information can be found at NYS Education Department, New Requirements for the Provision of Special Education Services to Home-Instructed (“Home-Schooled”) Students (July 2008), at:

 

http://www.p12.nysed.gov/specialed/publications/policy/homeinstructed708.htm

 

Though private schools do not rely on federal or state funds to provide education to their students, they are, in fact, required to provide special education services to their students. Various laws give them provisions to provide everything from on-site special education services, to recovering funds they spend, to ensure that students receive the services they need by whatever means necessary.  

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