Education Law Insights

• Print
• Comments
• Share Link

In a recent ISBE Superintendent’s Message, school districts were reminded that it’s the time of year when districts should be planning to complete annual, timely and meaningful consultation (TMC) with private schools and families of home-schooled students with disabilities. ISBE encouraged school districts to complete the TMC by no later than October 15, 2012, and to submit documentation of the TMC by November 1, 2012. ISBE also reminded school districts that the specific steps for conducting TMC can be found in ISBE’s guidance memos—Supplemental Guidance Information To Memorandum #05-7 (August 11, 2005) Regarding The Non-Public Proportionate Share (April 21, 2006) and Special Education Services For Parentally Placed Private School Children With Disabilities (June 25, 2006), and that ISBE has an affirmation form available for school district use.

A review of the ISBE guidance materials raises a related and interesting issue relating to special education evaluations for private school students. When a student resides in school district A, but attends a private (non special-education) school located in school district B, which school district has the responsibility to evaluate the student?

Most would say the school district in which the private school is located should conduct any evaluation or subsequent reevaluation. There is good support for that conclusion. The June 25, 2006 ISBE guidance document includes the following statement:

“[T]he district in which the child is attending a private school will have the sole responsibility for conducting an initial evaluation (and re-evaluations as necessary).”

And the April 21, 2006 ISBE guidance document states:

“Beginning with the 2006-07 school year, however, the serving district will have the responsibility for conducting all eligibility conferences for parentally-placed non-public school students regardless of the residency of the students.”

Federal regulations say the same. 34 C.F.R. §300.131 provides that each local school district must locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private schools located within their boundaries.

Finally, in a questions and answers document the Office of Special Education and Rehabilitative Services of the Department of Education (OSERS), in response to the question “Which LEA is responsible for conducting child find for parentally placed private school children?” states:

“[T]he LEA where the private school is located is responsible for conducting child find for parentally placed private school children.” (Question B-1).

OSERS gives the same answer when the question deals with reevaluations:

“The LEA where the private elementary school or secondary school is located is responsible for conducting reevaluations of children with disabilities enrolled by their parents in the private elementary schools and secondary schools located in the LEA.” (Question B-5).

So this is a settled issue, right? Wrong. In the same questions and answers document, OSERS muddies the water in its response to the question “Is it possible for a parent to request evaluations from the LEA where the private school is located as well as the district where the child resides?” OSERS says that it

“recognizes that there could be times when parents request that their parentally placed child be evaluated by different LEAs if the child is attending a private school that is not in the LEA in which the child resides. For example, because most States generally assign the responsibility for making FAPE available to the LEA in which the child’s parents reside, and because that could be an LEA that is different from the LEA in which the child’s private school is located, parents could ask two different LEAs to evaluate their child for different purposes at the same time.”

OSERS does say that it does not “encourage this practice” but says:

“Although the Department discourages parents from requesting evaluations from two LEAs, if the parent chooses to request evaluations from the LEA responsible for providing the child FAPE and from another LEA that is responsible for considering the child for the provision of equitable services, both LEAs are required to conduct an evaluation.”

So what does this all mean? The OSERS Q&A is not binding and does not have the force of law, so it is unclear whether it reasonably could be interpreted as binding a resident school district to conduct an evaluation for a student who attends a private school outside of the district’s boundaries. Moreover, the OSERS guidance must be read in context of the FAPE requirements of IDEA. A parental request for an evaluation from the district of residence is inextricably linked to a request for that district to fulfill its duty to provide a FAPE when the child is attending district schools. This FAPE connection is addressed in that same questions and answers document, which address which district is responsible to make FAPE available to a child (presuming the district conducting the evaluation has found the child eligible). It states that if “a parent makes clear his or her intent to keep the child enrolled in the private elementary or secondary school located in another local education agency (LEA), the LEA where the child resides is not required to make FAPE available to the child.” Question B-5. So if a parent or guardian does not seek to enroll the student in the resident school district, it makes little sense to require the resident school district to conduct an evaluation. And if the student is going to enroll in and seek an IEP from the resident school district, it may make sense for the school district to conduct an evaluation regardless of where the student’s current private school is located. School districts often find that it is better to conduct their own evaluation when they are responsible for the IEP.

So, back to our seemingly simple question: When a student resides in school district A, but attends a private (non special-education) school district located in school district B, which school district has the responsibility to evaluate the student? Our answer: It depends. School leaders should ensure those on the special education front lines ask the parent or guardian whether they plan to enroll the student in the resident school district (school district A). If the parent does, school district A (in which the student resides) should conduct an evaluation if requested. If the student does not plan to enroll in school district A, school district B (in which the student’s private school is located) should conduct the evaluation.