Question:  My child is currently enrolled in a public school.  According to his IEP, he qualifies for several forms of therapy.   We were told that if we put him into a private school he will loose services.  The private school disagrees.  Who is going to pay and how do I find out who is responsible for his special education needs? 

When my son went through his IEP in May, they told us that he qualified for 20 min of speech 2/week, APE 30 min 1/wk, and OT for 30 min/week. They also recommended special day class 5 days/week.  We were also told if we chose to go to private school, we would loose all those services.

The private school is telling us that is incorrect, and that we may have to fight for the services they say in his IEP that we qualify for. 

There is a local Parent Support group called MATRIX, who say we don't qualify for help in private school because of the box on the IEP checked. They only pay for special ed in private school if the child has "low Incidence Eligible" such as blind or orthopedically impaired. 

I can not afford the private speech therapy at $40/30 minutes 2/week.  XXXX's speech has declined a little over the summer, and he still has trouble putting sentences together. I'm told the problem is with pragmatics rather than vocabulary. 

I'll be happy to consult an attorney and fight for special ed services if it is something we should do, but I would sure hate to make a fool of myself and turn the special ed folks against me if I am in the wrong.

Answer:  Practices and strategies in dealing with private school service issues can vary from state to state. Below this paragraph we give a "canned" discussion of the generic issue of services in private schools. We suggest that you write a nice letter to the responsible special education authority in your school district describing XXXX's current speech and language performance and needs, and ask them to clarify for you in writing whether he qualifies for the services in private school or not. In your letter you should ask them what rules or laws they rely on in making their decision. Be sure to include a copy of XXXX's IEP with your letter. If they respond that XXXX does not qualify for Speech and Language at the private school we would suggest that you consult a special education attorney in your area to see what legal options may exist.

Here is some sample language you might want to use in your letter.

Dear Sped director:

My son, XXXX's recent IEP identifies the need for XXXX to receive 20 min of speech 2/week, APE 30 min 1/wk, and OT for 30 min/week. We are choosing to enroll XXXX in a private school but would like the school district to provide these identified related services on an auxiliary basis at his school. Is there anything more that we need to do to formally request these services than writing this letter? Could you please advise us in writing as to what other information we may need to provide. Please also advise us in writing of your decision on our request and the reasons for the decision if it is that the services cannot be provided.

DO SCHOOL DISTRICTS HAVE TO PROVIDE SERVICES TO PRIVATE STUDENTS WITH DISABILITIES AT THE SITE OF THE PRIVATE SCHOOL?

It seems almost certain that school districts do not have to provide services such as speech therapy or occupational therapy on-site at private schools. On the other hand there is a great deal of uncertainty when the services are one-to-one assistance, such as an interpreter or an aide to accompany the child throughout the school day. Despite changes intended to address this uncertainty in the 1997 Amendments, it still exists.

OSEP has taken the position that under the IDEA Part B and EDGAR regulations a public agency is under no obligation to provide special education and related services directly on the premises of a private school. Letter to Anonymous, 16 EHLR 1398 (OSEP 1990); accord Letter to Exon, 213:125 EHLR (OSERS 1988).

Courts uniformly have deferred to OSEP when the student is ambulatory and requires discrete items of service such as speech therapy or physical therapy. E.g., Foley v. Special Sch. Dist. Of St. Louis County, 23 IDELR 11732 (E.D. Mo. 1996). Rather, the issue that has been disputed in such cases is whether the school district has an obligation to provide transportation to and from the service site.

A more contentious issue presents itself when the student requires services or programming essential for inclusion, such as a one-on-one aide or an interpreter.

Resolution of this issue turns mainly on interpretation of EDGAR regulation 34 C.F.R. §76.654(a) (services provided to private school students must be comparable to those provided to public school students in quality, scope and opportunity).

While the Seventh Circuit Court of Appeals ruled in K.R. v. Anderson Community Schools Corp., 23 IDELR 1137 (7th Cir. 1996), that OSEP's interpretation of the pertinent regulations gave school districts discretion even when essential services were at issue, three other circuit courts - Russman v. Sobol, 24 IDELR 274 (2cd Cir. 1996), Cefalu v. East Baton Rouge Parish School Board, 25 IDELR 142 (5th Cir. 1997), and Fowler v. Unified School District No. 259, 25 IDELR 454 (10th Cir. 1997) - and have ruled that the IDEA does require on-site provision of essential services, at least to some extent, without a district's broad discretion to decline to provide.

The essence of the parents' arguments in each dispute has been the interpretation of "comparable services." When essential services are at issue, there can be nothing comparable. An offer to provide the essential services if the student enrolls at a public school is not "comparable"; it is meaningless, they have claimed. If the school district can discharge its universally acknowledge obligations to private school children by requiring them to stop being private school children, then the IDEA's mandate is eviscerated. As the Fowler court state: "[S]ervices . . . such as the sign language interpreter at issue in this case, cannot be effectively provided to a private school student anywhere other than the private school site, because they confer no benefit unless they accompany the child throughout his or her educational day." 25 IDELR at 454.

The circuit courts in Russman and Cefalu agreed with this argument to some extent, limiting the districts' discretion to decline to provide essential services, at least to the extent the costs of such services did not exceed those that would be incurred if the student attended public school. In so ruling, the courts found the IDEA Part B and EDGAR regulations supported what is, at base, a commonsense-type argument: If obligated to provide precisely the same services in basically the same manner, in the process probably incurring approximately the same cost. So, from a strictly dollars-and-sense point of view, there is little compelling reason to deny a child with a disability the ability to have essential services provided on-site at the school of his or her parents' choosing. Accordingly, school districts' discretion to deny such services should be curtailed.

In its Brief for the United State as Amicus Curiae submitted to the Supreme Court in K.R. v. Anderson Community School Corp., 23 IDELR 1137 (7th Cir. 1996) (No. 94-C-766), the Department of Justice took issue with these courts, with respect to both the interpretation of the IDEA and EDGAR regulations and with respect tot he 1997 Amendments. The key to its argument is its contention that the prior law should be interpreted consistently with the 1997 Amendments (at IDEA (as amended) § 1412(a)(10)(A)(I), and that both significantly limit the amounts school district must expend on service for private school children.

Because IDEA grants subsidize only a small percentage of the cost of providing special education services to the average disabled child, the expenditure of a proportionate share of those federal grants could not, standing alone, provide private school students as a class with anything more than a small fraction of the publicly funded services that public school children receive through a combination of federal, state, and local money. Because the decisions in Russman, Cefalu and Fowler would often entitle private school children to the full range of publicly funded services they would receive if they attended public school, those decisions effectively compel school districts to spend not just a proportionate share of their federal grant money, but also a substantial portion of their state and local money as well, to satisfy their legal obligations to such children.

Keep in mind, though, that the above is just one interpretation of a law that is far from clear, in either its old or new reincarnations, or even with regard to the impact that the 1997 Amendments should have on the issue.

This whole area of the law still is evolving. Hope this gives you some food for thought. We're sorry we can't be more specific, but we haven't seen the documentation in your case, nor are we fully equipped with all the facts we would need to give a specific answer. This answer reflects on the issue in general.

We are always happy to help.

Calvin and Tricia