Individuals with Disabilities Education Act (IDEA): Services in Private Schools under P.L. 108-446

Individuals with Disabilities Education Act
(IDEA): Services in Private Schools under
P.L. 108-446
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
The Individuals with Disabilities Education Act (IDEA), as amended by P.L. 108-
446, provides for services for children with disabilities in private schools. A child with
a disability may be placed in a private school by the local educational agency (LEA) or
the State Educational Agency (SEA) and costs are paid by the agency. Children with
disabilities enrolled by their parents in private schools are treated differently; generally,
they are to be provided special education and related services to the extent consistent
with the number and location of such children in the school district served by a LEA
pursuant to several requirements. These requirements include provisions relating to
direct services to parentally placed private school children with disabilities, the
calculation of the proportionate amount of funds, and a requirement for record keeping.
Compliance procedures for these requirements were added by the 2004 reauthorization.
For a general discussion of the changes made by P.L. 108-446, see CRS Report
RL32716, Individuals with Disabilities Education Act (IDEA): Analysis of Changes
Made by P.L. 108-446, by Richard N. Apling and Nancy Lee Jones. This report will be
updated as necessary.
Background
The Individuals with Disabilities Education Act (IDEA) is a grants and civil rights
statute which provides federal funding to the states to help provide education for children
with disabilities. If a state receives funds under IDEA, it must make available a free,
appropriate public education (FAPE) for all children with disabilities in the state.¹ Under
the law prior to the enactment of P.L. 105-17 in 1997, states were required to set forth

¹ 20 U.S.C. §1412(a)(1)(A). In addition to the requirements of IDEA, schools must also comply
with section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the Americans with
Disabilities Act, 42 U.S.C. §§12101 et seq., where applicable. These statutes essentially prohibit
discrimination against an otherwise qualified individual with a disability.

policies and procedures to ensure that provision was made for the participation of children
with disabilities who are enrolled in private schools by their parents consistent with the
number and location of these children. These requirements were further detailed in
regulations which required that local education agencies (LEAs) provide private school
students an opportunity for equitable participation in program benefits and that these
benefits had to be “comparable in quality, scope, and opportunity for participation to the
program benefits” provided to students in the public schools.² The vagueness of the
statute and the “equitable participation” standard led to differences among the states and
localities and to differences among the courts. Prior to P.L. 105-17, the courts of appeals
that had considered these issues had sharply divergent views. Some courts gave local
authorities broad discretion to decide whether to provide services for children with
disabilities in private schools which generally resulted in fewer services to such children³
while others attempted to equalize the costs for public and private school children.⁴ The
Supreme Court had granted certiorari in several of these cases but when Congress
rewrote the law in 1997, the Court vacated and remanded these cases.
The IDEA Amendments of 1997 rejected the “equitable participation”standard and
provided that to the extent consistent with the number and location of children with
disabilities in the state who were enrolled in private schools by their parents, provision
was made for the participation of these children in programs assisted by Part B by
providing them with special education and related services.⁵ The amounts expended for
these services by an LEA were to be equal to a proportionate amount of federal funds
made available to the local educational agency under Part B of IDEA. These services
could be provided to children with disabilities on the premises of private schools,
including parochial, elementary and secondary schools.⁶ There was also a requirement
that the statutory provisions relating to “child find,” identifying children with disabilities,
are applicable to children enrolled in private schools, including parochial schools.⁷
More changes to these provisions were made by the 2004 reauthorization. The
Senate report observed that “the intent of these changes is to clarify the responsibilities
of LEAs to ensure that services to these children are provided in a fair and equitable
manner.”⁸ In addition, the Senate report stated that “many of the changes reflect current
policy enumerated either in existing IDEA regulations or the No Child Left Behind Act.”⁹
The House report noted that “the bill makes a number of changes to clarify the

² Former 34 C.F.R. §§ 76.651-76.662.
³ See e.g., Goodall v. Stafford County Public School Board, 930 F.2d 363 (4^th Cir. 1991), cert.
denied, 502 U.S. 864 (1991); K.R. v. Anderson, 81 F.3d 673 (7^th Cir. 1996), vac. 521 U.S. 1114^th
(1997), 125 F.3d 1017 (7 Cir. 1997), cert. denied, 523 U.S. 1046 (1998).
⁴ See e.g., Russman v. Sobol, 85 F.3d 1050 (2d Cir. 1996), vac. 521 U.S. 1114 (1997), on
remand, 150 F.3d 219 (2d Cir. 1998).
⁵ P.L. 105-17, §612(a)(10)(A). Part B contains the state formula grant program, the requirement
for a free appropriate public education and due process protections for children with disabilities.
⁶ Id.
⁷ P.L. 105-17. §612(a)(10)(A)(ii).
⁸ S.Rept. 108-185, 108^th Cong. 1^st Sess. 15 (2003).
⁹ Id.

responsibilities of local educational agencies to children with disabilities who are placed
by their parents in private schools. The Committee feels that these are important changes
that will resolve a number of issues that have been the subject of an increasing amount
of contention in the last few years.”¹⁰
Private School Placement under P.L. 108-446
Types of Private School Placements. A child with a disability may be placed
in a private school by the LEA or the State Educational Agency (SEA) as a means of
fulfilling the FAPE requirement for the child. In this situation the cost is paid for by the
LEA. A child with a disability may also be unilaterally placed in a private school by his
or her parents. In this situation, the cost of the private school placement is not paid by the
LEA unless a hearing officer or a court makes certain findings. However, IDEA does
require some services for children in private schools, even if they are unilaterally placed
there by their parents. The 2004 reauthorization includes several changes to the¹¹
provisions relating to children who are placed in private school by their parents. The
provisions relating to children placed in private schools by public agencies were not
changed.
Children with Disabilities Placed in Private Schools by their Parents.
Generally, children with disabilities enrolled by their parents in private schools are to be
provided special education and related services to the extent consistent with the number
and location of such children in the school district served by a LEA pursuant to several
requirements (§612(a)(10)(A)(I)). In addition to this general LEA responsibility, there are
also five specific requirements regarding parentally placed children.
LEA Responsibility. The general provision discussed above was changed from
previous law by the addition of the requirement that the children be located in the school
district served by the LEA. The Senate report described this change as protecting “LEAs
from having to work with private schools located in multiple jurisdictions when students
attend private schools across district lines.”¹² Although the intent was to protect LEAs
from working with private schools in multiple jurisdictions, this provision has generated
considerable controversy. A detailed discussion of this issue is beyond the scope of this
report; however, several of the issues raised include the disproportional effect on LEAs
with large concentrations of private schools, the lack of change in the funding formula to¹³

reflect the change, and potential conflicts with state laws.
¹⁰ H.Rept. 108-77, 108^th Cong., 1^st Sess. 94 (2003).
¹¹ The final regulations for P.L. 108-446 were promulgated by the Department of Education (ED)
on August 14, 2006 at 71 Federal Register 46540. For a detailed discussion of these regulations
see CRS Report RL33649, The Individuals with Disabilities Education Act (IDEA): Final
Regulations for P.L. 108-446, by Richard N. Apling and Nancy Lee Jones.
¹² S.Rept. 108-185, 108^th Cong., 1^st Sess. 15-16 (2003).
¹³ For a more detailed discussion of this issue, see CRS Report RL33368, The Individuals with
Disabilities Education Act (IDEA): Parentally Placed Children in Private Schools, by Richard
N. Apling and Nancy Lee Jones. See also “Questions and Answers on Serving Children with
Disabilities Placed by their Parents at Private Schools,” Department of Education (March 2006),
(continued...)

Specific Requirements for Parentally Placed Children. There are five
requirements regarding children parentally placed in private schools. The first is that the
funds expended by the LEA, including direct services to parentally placed private school
children, shall be equal to a proportionate amount of federal funds made available under
part B of IDEA. The 2004 reauthorization added the phrase regarding direct services.
The Senate report stated that “it is the committee’s intent that school districts place a
greater emphasis on services provided directly to such children — like specifically
designed instructional activities and related services — rather than devoting funds solely¹⁴
to indirect services such as professional development for private school personnel.”
Second, a new provision relating to the calculation of the proportionate amount is
added. In calculating this amount, the LEA, after timely and meaningful consultation with
representatives of private schools, shall conduct a thorough and complete child find
process to determine the number of children with disabilities who are parentally placed
in private schools. The final regulations provide a discussion and example of the
proportionate share calculation.¹⁵
Third, the new law keeps the previous requirement that the services may be provided
to children on the premises of private, including religious schools, to the extent consistent
with law. P.L. 108-446 added the term “religious” while deleting the term “parochial.”
Fourth, a specific provision regarding supplementing funds, not supplanting them,
is added. State and local funds may supplement but not supplant the proportionate
amount of federal funds required to be expended.
Fifth, each LEA must maintain records and provide to the SEA the number of
children evaluated, the number of children determined to have disabilities, and the
number of children served under the private school provisions. The House report stated¹⁶
that “such requirement ensures that these funds are serving their intended purpose.” The
general requirement regarding child find is essentially the same as previous law. The
requirement for finding children with disabilities is the same as that delineated in
§612(a)(3) for children who are not parentally placed in private schools, including
religious schools. As was done in the previous section, the former use of the term
“parochial” is replaced by the term “religious” in the new law. New provisions are added
concerning equitable participation, activities, cost and the completion period. Child find
is to be designed to ensure the equitable participation of parentally placed private school
children with disabilities and their accurate count. The cost of child find activities may
not be considered in meeting the LEA’s proportional spending obligation. Finally, the
child find for parentally placed private school children with disabilities is to be completed

¹³ (...continued)
reprinted at [http://www.ed.gov/policy/speced/guid/idea/faq-parent-placed.pdf].
¹⁴ Id.
¹⁵ 34 C.F.R. §300, Appx. B, 71 Federal Register 46814 (August 14, 2006).
¹⁶ H.Rept. 108-77, 108^th Cong. 1^st Sess. 94 (2003). See also S.Rept. 108-185, 108^th Cong., 1^st
Sess. 15-16 (2003), which states that this requirement was “to help to ensure that these funds are
serving their intended purpose.”

in a time period comparable to that for students attending public schools
(§612(a)(10)(A)(ii)).
Consultation Between the Local Educational Agency and Private
School Officials. P.L. 108-446 adds requirements concerning LEA consultation with
private school officials and representatives of the parents of parentally placed private
school children with disabilities. This consultation is to include
^!the child find process and how parentally placed private school children
with disabilities can participate equitably;
^!the determination of the proportionate amount of federal funds available
to serve parentally placed private school children with disabilities,
including how that 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 the process will operate;
^!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 the types of services, including direct services
and alternate service delivery mechanisms, how the services will be
apportioned if there are insufficient funds to serve all children and how
and when these decisions will be made; and
^!how the LEA shall provide a written explanation to private school
officials of the reasons why the LEA chose not to provide services if the
LEA and private school officials disagree (§612(a)(10)(A)(iii)).
The Senate report described the consultation procedure as similar to that in the No Child
Left Behind Act and “therefore, the committee does not believe including these provisions¹⁷
places an undue burden on LEAs.”
The new law requires a written affirmation of the consultation signed by the
representatives of the participating private schools. If the private school representatives
do not sign within a reasonable period of time, the LEA shall forward the documentation
to the SEA (§612(a)(10)(A)(iv)).
Compliance procedures also are added by P.L. 108-446. Generally, a private school
official has the right to submit a complaint to the SEA alleging that the LEA did not
engage in meaningful and timely consultation or did not give due consideration to the
views of the private school official. If a private school official submits a complaint, he
or she must provide the basis of the noncompliance to the SEA, and the LEA must
forward the appropriate documentation. If the private school official is dissatisfied with
the SEA’s determination, he or she may submit a complaint to the Secretary of Education,
and the SEA shall forward the appropriate documentation to the Secretary
(§612(a)(10)(A)(v)).
Equitable Services. The 2004 reauthorization contains a specific subsection
regarding the provision of equitable services. Services are to be provided by employees

¹⁷ S.Rept. 108-185, 108^th Cong., 1^st Sess. 15 (2003).

of a public agency or through contract by the public agency. In addition, the services
provided are to be “secular, neutral, and nonideological” (§612(a)(10)(A)(vi)). The new
law further states that the funds that are available to serve pupils attending private schools
shall be controlled and administered by a public agency (§612(a)(10)(A)(vii)).
Reimbursement for Private School Placement. As noted above, when a
child with a disability is unilaterally placed in a private school by his or her parents, the
cost of the private school placement is not paid by the LEA unless a hearing officer or a
court makes certain findings. As in previous law, this reimbursement may be reduced or
denied if the child’s parents did not give certain notice (§612(a)(10)(C)(iii)). Both the
1997 and 2004 reauthorizations contain an exception to this limitation, but this exception
is changed somewhat in the new law. Under the new law, the cost of reimbursement is
not to be reduced or denied for the failure to provide notice if:
^!the school prevented the parent from providing such notice;
^!the parents had not received notice of the notice requirement; or
^!compliance would likely result in physical harm to the child.
Previous law had included a provision requiring that reimbursement not be reduced or
denied if a parent is illiterate and had included “serious emotional harm.”
P.L. 108-446 also contains a provision allowing, at the discretion of a court or
hearing officer, the reimbursement not to be reduced or denied if:
^!the parent is illiterate or cannot write in English; or
^!compliance with the notice requirement would likely result in serious
emotional harm to the child (§612(a)(10)(C)(iv)).
An issue that is not specifically addressed in the statute is whether parents of a child
with a disability are entitled to private school reimbursement even though the student had
never received special education services from the school district. In the Supreme Court’s
most recent IDEA decision, Board of Education of the City School District of the City of¹⁸
New York v. Tom F., the Court, dividing 4-4, upheld an appeals court ruling that parents
of a child with a disability are entitled to private school reimbursement even though the
student had never received special education services from the school district. The Court’s
per curiam decision does not set a precedent for lower courts; therefore, the issue is not
settled. On October 15, 2007, the Supreme Court denied certiorari in another case
presenting the same issue.¹⁹

¹⁸ 552 U.S. __ (2007); 2007 U.S. LEXIS 11481 (October 10, 2007).
¹⁹ Board of Education of the Hyde Park Central School District v. Frank G., 459 F.3d 356 (2d
Cir. 2006), Petition for cert. denied October 15, 2007 (No.06-580).