Private School Students with Disabilities

 

Must school districts provide special education and related services to private school
students with disabilities?


Yes. Under both 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)).


A school district, however, is not responsible for the student’s tuition at the private school unless the
parents have placed the student at the private school because they disagree with the program or placement
recommended by the district, and they meet certain other conditions.


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


What school district is responsible for providing special education and related services to
parentally placed private school students with disabilities?


The school district where a private school is located (district of location) is responsible for
complying with the legal requirements related to the equitable provision of services to parentally placed
private school students with disabilities, including students who are not New York State residents. Those
legal requirements involve:


• Child find activities;


• Timely and meaningful consultation with representatives of private schools located in their district
and representatives of parentally placed 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)); and


• Obtaining parental consent, or consent from a student 18 years of age 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))


Some of the topics school districts of location must consult about with private school representatives
include the child find process, the consultation process and how it will work throughout the school year,
and how, where, and by whom services will be provided (20 USC § 1412(a)(10)(A)(iii); 34 CFR §
300.134). School districts must obtain a written and signed affirmation from representatives of
participating private schools that the required consultation has occurred. If they are unable to, they must
forward documentation of the consultation process to the NYS Education Department (20 USC § 1412(a)
(10)(A)(iv); 34 CFR § 300.135).


For additional information on school district responsibilities towards parentally-placed private school
students with disabilities, see NYS Education Department, Guidance on Parentally-Placed Nonpublic
Elementary and Secondary School Students (Sept. 2007), at:


http://www.p12.nysed.gov/specialed/formsnotices/PWN/memo-revPWN-713.htm
 


What is the process for requesting special education services for a parentally placed private
school student?


Parents of New York resident students who voluntarily place their child in a private school must submit
a written request for services on or before June 1 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 move into a
district after the June 1 deadline have 30 days after such an occurrence to submit their request. But in
either case April 1 is the last date by which a parent may request services for the current year.
Furthermore, for students who are first identified or establish residence after March 1, requests for
services in the current year submitted after April 1 are deemed a request for services commencing in the
following school year (Educ. Law § 3602-c(2); 8 NYCRR § 177.1).


Services must be provided by the district where the private school is located (Educ. Law § 3602-c(2). A school district may not insist on providing those services only at one of its own schools (Application of a Child with a Disability, SRO dec. no. 02-035 (2003).


Who is responsible for reviewing a request for special education services for a parentally
placed private school student?


A request for special education services for a parentally placed private school student is reviewed by
the committee of special education (CSE) 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 deemed eligible for services, then the
CSE will develop an individualized education services program (IESP) based on the student’s
individual needs in the same manner and with the same contents as an individualized education program. Services will be made available to the student on an equitable basis, as compared to 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 student is not a New York State resident, the CSE will develop for the student a services plan in
accordance with federal law and regulations. Services will be provided to the student to the extent
required by federal law and regulations (Educ. Law § 3602-c(2-b)). This entails the expenditure of a
proportionate amount of federal funds made available under the Individuals with Disabilities Education
Act, and timely and meaningful consultation with private school representatives and representatives of
parentally placed private school students with disabilities regarding the provision of services to such
students (20 USC § 1412(a)(10)(A); 34 CFR §§ 300.130–300.144).


May school districts provide on-site special education and related services to students with
disabilities who attend private schools, including parochial schools?


Yes. 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, to the extent consistent with law (20 USC § 1412(a)(10)(A)(i)(III); 34 CFR § 300.139(a)).
Furthermore, the U. S. Supreme Court has ruled that the federal constitution does not prevent a school
district from providing services to students on-site at the premises of their parochial school (Agostini v.
Felton, 521 U.S. 203 (1997)).


New York’s dual-enrollment law provides for the participation of nonpublic school students with
disabilities in special education programs on an equitable basis (Educ. Law § 3602-c(2)(b)(1)).
However, it does not mandate that school districts provide services at a nonpublic school for each student
(Bd. of Educ. of Bayshore UFSD v. Thomas K., 14 N.Y.3d 289 (2010)). Nonetheless, a district would
have to provide on-site special education related services at a nonpublic school to students whose
educational needs require on-site delivery of such services, including the provision of a one-to-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


Prior to the Bayshore decision, New York’s State Review Officer had indicated that services which
must be provided in a classroom setting such as a consultant teacher and full-time aide services had to be
provided on-site in the student’s private school. Services such as counseling and occupational therapy,
which do not require a classroom setting, do not have to be provided on-site (Application of a Child with
a Disability, SRO dec. no. 02-024 (2003)). However, according to the New York Court of Appeals in
Bayshore, “the pertinent question is what the educational needs of [a particular] student require” (Bd. of
Educ. of Bayshore UFSD v. Thomas K.).


Is there a mechanism for districts where private schools are located to recover the costs
associated with providing services to students with disabilities attending such schools?


Yes. School districts where private schools are located that provide services to non-resident students
who are New York State residents may recover costs of 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. Otherwise, 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 a 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). Disputes over the amount of tuition
or costs charged by a district of location must be resolved through the resolution process established in
commissioner’s regulations (Educ. Law § 3602-c(7)(c); 8 NYCRR § 177.2).


For further information on this topic, see 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


Are due process hearings available to parentally placed private school students with
disabilities?


Yes. Parents of private school students, including out-of-state residents, may present a due process
complaint and request a due process hearing regarding the alleged failure of a school district of location
 to comply with its child find responsibilities, including evaluation and eligibility
determination requirements (Educ. Law § 3602-c(2)(c), (2-b)).


Are students with disabilities who are home-instructed by their parents eligible to receive
special education and related services?


Yes. Home-schooled students with disabilities are deemed to be nonpublic school students solely for
the purpose of receiving special education and its computation of state aid for such education. To be
eligible for such services, the student must be entitled to attend public school tuition free, and have an
individualized home instruction plan that has been determined to be in compliance with commissioner
regulations by the superintendent of schools of the district in which the home school is located (§ 3602-
c(2-c); see also 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

 

 

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Managing Attorney

Angel A. Castro, III, Esq.

60 Broad street

24th Floor
New York, NY

10004 

 

 

Phone: (646) 234-3177
Fax: (212) 731-0217

 

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