Legal Protections & Responsibilities

Answers to Frequently Asked Questions Regarding Serving Eligible Students with Disabilities Parentally Placed in Private (Nonpublic) Schools 

The New Jersey Department of Education, Office of Special Education Policy and Procedure (NJOSEPP) developed this Q&A document to provide local educational agencies (LEAs), service providers, parents, private school representatives, and other interested parties with information regarding the requirements for serving children with disabilities placed by their parents in private schools.  This document does not create or confer any rights for or on any person.  This guidance does not impose any requirements beyond those required under applicable law and regulations.

Section 612(a)(10)(A) of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations 34 CFR §§300.130 through 300.144 require that LEAs, after timely and meaningful consultation with private school representatives, conduct a thorough and complete child-find process to determine the number of parentally placed children with disabilities attending private schools located within the LEA regardless of where those students live.  IDEA establishes that the district where the private school is located (district of location) is responsible to provide services to parentally placed students after consulting with the eligible nonpublic schools within the district.  

Additional information on the federal requirements is available on the Department's website.   

Child Find and Evaluation (34 CFR §300.131)

Q. Which LEA is responsible for "child find" and the determination of eligibility for special education and related services for children that are parentally placed in private schools?

A. The LEA that is the district of location (i.e., the district where the private school is located) is responsible for the identification and determination of eligibility for special education and related services for students parentally placed in private schools.  This includes students who attend the private school within the LEA but whose parents reside out of state.  The LEA should have a process in place for communicating with private schools located within the LEA throughout the year to ensure all students are located and identified. 

Q. Which LEA is responsible for locating (child find) and evaluating preschool students?

A.  The LEA where the parent resides (district of residence) is responsible for child find, the initial evaluation and determination of eligibility for preschool students parentally placed in private schools.  If found eligible, the district of residence would then offer a free, appropriate public education (FAPE) to the student.  The parent may opt to return to the district of location (i.e. the district where the private school is located) for the consideration of services through the IDEA nonpublic proportionate share.

Q.  Can an LEA use proportionate share funds to pay for evaluations for students parentally placed in a private school?

A.  No.  There is a distinction under the IDEA between the obligation to conduct child-find activities, including initial evaluations, for potentially eligible children who are parentally placed in private schools, and the obligation to use an amount of funds equal to a proportionate amount of an LEA's subgrant to provide special education and related services to eligible parentally placed private school children.  The obligation to conduct child find, including initial evaluations, exists independently from the obligation to provide equitable services.  The costs of child-find activities, such as evaluations, may not be considered in determining whether the LEA has spent an appropriate amount on providing special education and related services to parentally placed private school children with disabilities.  See 34 CFR §300.131(d). Additional evaluations may impact programming and cannot be considered in the proportionate share.

Q. Which LEA reports the students with disabilities parentally placed in private schools in the NJ SMART data collection system?

A.  The district where the private school is located is responsible to report all identified students with disabilities in NJ SMART (ages 3-21) even if they are not receiving services.

Q.  If a parent refuses to provide consent for services, does the responsible LEA still include the student in the NJ SMART data collection? 

A.  Yes. The responsible LEA must still report the student in NJ SMART. 

Non-operating LEAs

Q.  Which LEA is responsible for reporting to NJ SMART and providing services to parentally placed students with disabilities in private schools within non-operating LEAs?

A.  The submitting LEA for the non-operating LEA reports the identified students with disabilities attending private schools located within the non-operating LEA.  This number of students will be transferred back to the non-operating district and a proportionate share of the IDEA funds will be created.   The non-operating LEA must join in a consortium with an operating LEA in order to receive the benefit of the federal funds.  The operating LEA with which they form a consortium would then be responsible for the identification, consultation and provision of services to the eligible students attending the private school during the grant year.

For-Profit vs Not-for-Profit Private Schools

Q. Are children enrolled in a for-profit private school included for the purpose of determining the proportionate share and are they eligible to receive equitable services?

A. The regulations at 34 CFR §300.130 define parentally placed private school children with disabilities as children with disabilities enrolled by their parents in private – including religious –  schools or facilities that meet the definition of elementary school in 34 CFR §300.13 or secondary school in 34 CFR §300.36.  The definitions of elementary school in 34 CFR §300.13 and secondary school in 34 CFR §300.36 specify that the school must be nonprofit. Therefore, children attending for-profit private schools would not be included in the proportionate share calculation or be eligible for equitable services.

However, under 34 CFR §300.111, the state must ensure that all children with disabilities, including children with disabilities attending private schools, who are in need of special education and related services, are identified, located, and evaluated.  This includes children with disabilities attending for-profit schools.  The state determines which public agency is responsible for conducting child find under 34 CFR §300.111 for children suspected of having a disability attending for-profit private schools.  As explained on page one in the Child Find and Evaluation section of this Q&A, in New Jersey, the district of location is responsible for child find in private schools, unless the child is a preschool student with a suspected disability.  As stated above, for preschool students, the LEA where the parent resides is responsible for child find, the initial evaluation and determination of eligibility.

Consultation (34 CFR §300.134)

Q. What is consultation?

A.  As defined in the regulations, consultation is a mandatory process that involves discussions between the LEA, private school representatives, and representatives of the parents of parentally placed private school children with disabilities on key issues related to the provision of equitable participation in federally funded special education and related services.  Each LEA must engage in the consultation process, in a timely and meaningful way, during the development of special education and related services.   A unilateral offer of services by an LEA with no opportunity for discussion is not adequate consultation.  

Q.  Who is responsible for the required consultation?

A. The LEA that is the district of location is responsible to consult with the representatives of eligible parentally placed students with disabilities (including parents), ages three through twenty-one, to determine the needs of those students prior to the determination of services.

Q.  Which LEA is responsible for an Independent Educational Evaluation (IEE) if the parents disagree with the original evaluation?

A. The parent would request an IEE from the LEA that conducted the evaluation with which the parents disagree.

Funding (34 CFR §300.133)

Q.  How is the proportionate share determined?

A.  Determination of the proportionate share starts with the determination of the number of parentally placed private school children with disabilities (both resident and nonresidents) in the area served by the LEA (as reported in NJ SMART).   The number of parentally placed private school children with disabilities in the area served by the LEA is then divided by the total number of children with disabilities in the area served by the LEA – both public and private.   Note that students placed in a for-profit private school are not included as part of this calculation.  This percentage is then multiplied by the total federal funds allocated to the LEA to determine the "proportionate amount" to be expended. 

Q.  How can the members of the public find out the amount an LEA must expend to meet its proportionate share of Part B funds?

A.  This information may be viewed on the LEAs' allocation tabs within the Electronic Web Enabled Grant (EWEG) application.  PUBLIC ACCESS may be used to view the application of any LEA that has submitted an application.

Supplement vs Supplant (34 CFR §300.133(d))

Q.  May the district use local and/or Chapter 193 (state) funds for the provision of the proportionate share of services?

A.  No.  Federal funds must be utilized prior to using state or local funds.  This means that if the only services being provided are speech and supplemental instruction, the federal grant would fund this until the federal allocation is expended and then the state/local funds would be utilized.  LEAs that consistently provide speech/supplemental through Chapter 193 and then roll over the unexpended federal funds may find themselves to be supplanting instead of supplementing as required by the regulations.  If a request for services includes services that may not be provided through Chapter 193, then the LEA should evaluate the request against the funds available and provide them accordingly.

Q. Can the provider or private school demand what funds are to be used?

A.  No. It is up to the LEA to determine how to fund the services in accordance with the regulations.

Q.  Is there a requirement that the parent/school accept supplemental instruction, through Chapter 193, first, prior to receiving other services?

A.  No. There is no requirement that a student receive supplemental instruction before receiving any other services. 

Q.  May the proportionate share services, through the federal programs, be the primary instruction for the student (core classes)?

A. No. The services must supplement (i.e., in class support, occupational therapy, physical therapy, additional sections of reading etc.) not replace the private school's responsibility for core instruction.

Equitable Services

Q.  Is extended time on tests considered a service?

A.  No.  Extended time on tests would not be considered a "service."  However, a service plan must describe the specific special education and related services that will be provided to the student; and, in accordance with N.J.A.C. 6A:14-3.7(e), the service plan may also include supplementary aids and services, such as extended time on tests. 

Q. May services be provided through federal proportionate share funds during religious instruction?

A. No.

Service Plans

Q. When is a service plan developed?

A.  A service plan is developed once a student is found eligible for special education and related services.  The plan may include professional development for the teachers of the identified students, as well as services for the students.  If a parent refuses to provide consent for implementation of the service plan, the student remains eligible and is included in NJ SMART data reporting.

Q.  If the private school is providing the services themselves, without utilizing federal and/or state funds, would a service plan be developed?

A. No. A service plan is developed only if the federal and/or state funds are used to provide the services.

Expenditures (34 CFR §300.133)

Q. May an LEA include administrative costs to meet the requirement to spend a proportionate share of Part B funds on children with disabilities parentally placed in private schools?

A. No. Administrative costs may not be considered in the provision of proportionate share services.  If an LEA has contracted with a vendor to provide the services, any administrative charges should be incorporated into the rate for the service as the vendor does not administer the program.

Q. Are there any restrictions on how special education and related services are to be provided to parentally placed private school children with disabilities?

A. The key limitation is that, "[s]pecial education and related services provided to parentally placed private school children with disabilities, including materials and equipment, shall be secular, neutral, and nonideological." [34 CFR 300.138(c)(2)] Both as a practical matter, and as a matter of statutory requirement, this means that the control of all federal funds must remain with the LEA.  Likewise, the title to any materials, equipment, and property purchased with federal funds must remain with the LEA:

• Funds may not be used to finance the existing level of instruction in a private school or otherwise benefit the private school.
• Funds may not be used for the general needs of private school students.
• Equipment and supplies may only be placed in the private school during the period of time they are necessary for services and must be removed when no longer needed.  This means non-consumable materials.
• Equipment and supplies may only be used for provision of equitable services and must be removed if necessary to avoid unauthorized use.
• Equipment and supplies must be able to be removed from the private school without remodeling the private school facility.  This means the equipment and supplies must be portable.
• Funds cannot be used for repairs, minor remodeling or construction of private school facilities.[34 CFR 300.144(e)]

Q.   Can the manner in which services are delivered or the actual services themselves, through a service plan, be modified during the school year?

A. Yes.  The LEA should contact the private school to determine whether the services originally agreed to are being provided appropriately or if additional services may be needed.  Additional consultation, at a minimum, regarding the funds and the expenditures may occur when the LEA is allocating carryover funds.