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
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.
also told if we chose to go to private school, we would
loose all those
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
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
such as blind or orthopedically impaired.
can not afford the private speech therapy at $40/30 minutes
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
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
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
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.
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
We are always happy to help.
Calvin and Tricia