Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c

The school district of location must consult with nonpublic school representatives and representatives of parents of parentally placed nonpublic school students with disabilities enrolled in nonpublic elementary and secondary schools located within the boundaries of the school district during the design and development of special education and related services for students with disabilities and throughout the school year to ensure that parentally placed nonpublic school students identified through the child find process can meaningfully participate in the special education and related services.  The school district must engage in consultation regarding the child find process, provision of special education services, and use of federal funds.  Consultation is not specific to individual students.  Individual services are determined by the Committee on Special Education (CSE).  The consultation process must be timely and meaningful and include discussion of the following.

1.  Child Find:

• The child find process and how parentally placed nonpublic school students suspected of having a disability can participate equitably, including how parents, teachers and nonpublic school officials will be informed of the process. 
• How the consultation process will operate throughout the school year to ensure that parentally placed nonpublic school students with disabilities identified through the child find process can meaningfully participate in special education and related services.

2. Provision of Special Education Services:

• How, where and by whom special education and related services will be provided to such students, including a discussion of types of services, such as direct services and alternate service delivery mechanisms.  For example:
  • a discussion of how services might be provided could include a discussion of scheduling for resource room services;
  • a discussion of where services might be provided could include a discussion of those services that would generally be provided onsite and offsite of the nonpublic school or the factors that would be considered in the determination of where services would be provided;
  • a discussion of who will provide services might include a discussion of services that will be provided by the public school district directly and others that may be provided through contract with another agency.
• For students who reside out-of-state but are parentally placed in nonpublic schools located in the geographic boundaries of the public school, how a proportionate share of federal IDEA Part B funds will be spent on special education services to such students.
• How, if the school district disagrees with the views of the nonpublic school officials on the provision of services or the types of services, whether provided directly or through a contract, the school district shall provide to the nonpublic school officials a written explanation of the reasons why the school district chose not to provide services directly or through a contract.

3. Use of Federal Funds 

• The determination of the proportionate amount of federal funds available to serve parentally placed nonpublic school students with disabilities, including the determination of how the amount was calculated. 
• How such services will be apportioned if funds are insufficient to serve all parentally placed out-of-state resident students with disabilities and how and when these decisions will be made. (Note: For all NYS students, the school district must provide services pursuant to the student’s IESP, regardless of the apportionment of federal funds. For students who are not New York residents who are parentally placed in NYS nonpublic schools, the school district would need to consult on how such students can participate equitably consistent with the federal proportionate share of IDEA funds.)

The nonpublic school representatives must provide written affirmation of their participation in the consultation process to the public school district of location.  If the nonpublic school representative does not provide such affirmation within a reasonable period of time, the school district must forward the documentation of the consultation process to the State Education Department (SED). Attachment 2 provides a sample form for school districts to use to document its consultation process.

See Consultation Questions and Answers Below

Federal regulation (34 CFR section 300.300) establishes specific parent consent requirements for parentally placed nonpublic school students, as follows:

Consent for sharing personally identifiable information regarding special education:

• If a student with a disability is parentally placed, or is going to be parentally placed in a nonpublic school that is not located in the school district where the student legally resides, parental consent must be obtained before any personally identifiable information about the student relating to special education is shared between officials in the public school district of location and officials in the public school district of residence. Therefore, parent consent is required before sharing individual evaluations, individualized education programs (IEPs), IESPs or Services Plans and other special education records between the district of location and the district of residence. 

Consent for initial evaluations and reevaluations:

• If a parent who has placed a student with a disability in a nonpublic school at his/her own expense does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the school district may not use the consent override procedures described in 34 CFR sections 300.300(a)(3) and (c)(1) and the school district is not required to consider the student as eligible for special education services under 34 CFR sections 300.132 through 300.144.

Note:  There is no federal or State requirement for parental consent to share information between the school district of location and the nonpublic school the student intends to enroll in or is enrolled in.

In the 2006-07 school year, school districts reported data on the PD-1/4 report regarding the numbers of resident and nonresident parentally placed students with disabilities attending nonpublic schools located in the school district and the numbers of resident students who are parentally placed in nonpublic schools located in other school districts. These data were used to calculate a proportionate per pupil amount of IDEA funds for services to students with disabilities attending nonpublic schools for the 2007-08 school year. 

In the 2007-08 school year, it is anticipated that special education data previously collected on the PD-1/4 report will be collected through SED’s Student Information Repository System (SIRS).  This system will collect data at the individual student level.  Directions will be provided to school districts to report enrollment of all parentally placed students with disabilities in nonpublic schools located in the school district.  For each student, specific information will be requested to allow SED to complete its State and federal reporting requirements, including information needed to calculate the proportionate share of federal funds for each eligible student.

The district of location must maintain in its records and provide SED the following information related to parentally-placed nonpublic elementary and secondary school students:

• the number of  students evaluated;
• the number of  students determined to be students with disabilities; and
• the number of students served (i.e., receiving special education services).

Nonpublic Schools

1. What is the definition of a nonpublic school for purposes of section 3602-c of Education Law? 

A nonpublic school includes nonpublic elementary and secondary schools chartered by the Board of Regents, nonpublic secondary schools registered by the Board of Regents, and other nonpublic elementary and secondary schools determined by the public school district to be providing instruction substantially equivalent to that provided in the public schools. The Directory of Public and Nonpublic Schools and Administrators in New York State can assist school districts in identifying nonpublic schools for purposes of the consultation requirements.  Additional assistance may be provided by the State Office of Religious and Independent Schools.

2. If a nonpublic school has different sites in more than one school district, which school is the district of location?

The school district where the nonpublic school is geographically located would be the district of location for students attending that school, regardless of the address for administration (or BEDS code) of the nonpublic school.

Consultation

Note: Please see Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools (rev. Feb 2022) 

3. What steps should a public school district take to arrange for consultation with officials of nonpublic schools located within its geographic boundaries and with representatives of parents of parentally placed students with disabilities?

To arrange for consultation, a public school district should send a letter to representatives of each nonpublic school located in its geographic boundaries inviting them to participate in a meeting or meetings to discuss the required consultation topics.  In addition to nonpublic school officials, the school district must consult with representatives of parents of parentally placed students with disabilities.

Each of the nonpublic school officials should be asked to sign an affirmation that they participated in the consultation process.  In the event nonpublic school officials decline participation or to sign the affirmation, the public school district must submit documentation to SED of the consultation process.  Please see Attachment 2, a sample form for school districts to use to document its consultation process.

4. Must the public school district also consult with officials of approved private schools where students are placed by school districts?

The consultation requirements of 34 CFR section 300.134 do not apply to students placed by CSEs in approved private schools. However, if the approved private school also accepts students who are parentally placed and paying tuition, the public school must also consult with officials of these schools, with respect to those parentally placed students. 

5. Can nonpublic school officials file a complaint with SED or the United States Education Department (USED) on the consultation process?

Yes.  A nonpublic school official has the right to submit a complaint to SED that the public school district did not engage in consultation that was meaningful and timely, or did not consider the views of the nonpublic school officials.  The complaint submitted by the nonpublic school official must include the basis of the noncompliance.  If the nonpublic school official is dissatisfied with the SED complaint findings, he or she may submit a complaint to USED.  A complaint submitted by a nonpublic school official may be submitted using the sample form found on the State Complaint web page.

Child Find

6. Which school district has the responsibility to conduct the evaluation to determine if a parentally placed nonpublic school student is eligible for special education?

The district of location is responsible to conduct the evaluation to determine a student’s eligibility for special education.  The district of location is also the district that must obtain the informed written consent of the parent to conduct the initial evaluation or reevaluation.

7. Which school district would convene a meeting of the CSE to determine the student’s eligibility and develop the IESP?

If a student is parentally placed in a nonpublic school and is suspected of having a disability, the district of location is responsible to conduct the CSE meeting to determine a student’s eligibility for special education and, if determined eligible for special education, to recommend the special education services the student will receive and document such recommendations on an IESP.

8. Is it possible for a parent to request evaluations from the district where the nonpublic school is located as well as the district where the child resides?

Yes, but it is generally not advisable because subjecting a student to repeated testing by separate school districts in close proximity of time may not be the most effective or desirable way to obtain individual evaluations that are meaningful measures of whether a student has a disability or of obtaining an appropriate assessment of the student’s educational needs.

If the district of residence receives a request for an evaluation of a student suspected of having a disability who is parentally placed in a nonpublic school in another district, and the parent is not seeking to enroll the student in the public school, the district of residence should notify the parent of his/her right to request an evaluation from the district of location and the development of an IESP from the district of location. The district of residence, with parental consent to share information, should facilitate the referral to the district of location.

9. Is parent consent required when having a representative of the nonpublic school participate in the CSE meeting?

No. Parent consent is not required to share information between the district of location and the nonpublic school. The meeting notice would inform the parents of the individuals who are expected to attend the meeting.

Provision of Services

10. What is meant by services provided on an "equitable basis"?

The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. 

The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs under the former provisions of Education Law section 3602-c.  Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.  A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student, nor can a district deny services to a nonresident nonpublic school student that a resident nonpublic school student would receive.  The converse is also true-- a school district of location is not required to provide greater services to a nonpublic student than a public school student would receive under the Rowley standard (i.e., services reasonably calculated to enable the child to receive some educational benefit (458 U.S. at 206-07)).

11. Must the district of residence develop an IEP for a student who is parentally placed and conduct annual reviews of this IEP?

USED has provided guidance that states: "If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private elementary or secondary school located in another LEA, the LEA where the child resides need not make FAPE available to the child."  Therefore, if the parents make clear their intention to keep their child enrolled in the nonpublic elementary or secondary school, the district of residence need not develop or annually review an IEP for the student.

12. For the 2007-08 school year, must the school district of location conduct CSE meetings to develop new IESPs?

In cases where an IEP has been developed at an annual review meeting conducted in the 2006-07 school year by the district of residence, and parent consent has been obtained to share personally identifiable special education information between the district of location and the district of residence, the district of residence must forward the IEP developed at the student's annual review to the district of location.  For the 2007-08 school year, the IEP developed and shared with the district of location would be deemed an IESP and the district of location must provide the services recommended in the IEP, unless and until the district of location amends it and develops a new IESP. 

13. Is it permissible for the district of location to contract with another public agency, including the district of residence, for individual evaluations?

Yes. The district of location is responsible for child find, including evaluations.  However it can fulfill this responsibility directly, or through contract with another public agency, including the district of residence provided that the parent has provided consent to share special education information between the district of residence and the district of location.

14. Is it permissible for the district of location to contract with the student’s district of residence to provide special education services?

Yes. Nothing in IDEA or State law would preclude the district of location from contracting with the district of residence as a third party provider to fulfill its obligations to provide special education services, except that parent consent to share information between the district of residence and the district of location is required. 

15. Can the school district of location contract with a Board of Cooperative Educational Services (BOCES) to provide special education services to students with disabilities parentally placed in nonpublic schools in the geographic boundaries of their school district?

Yes.  Section 3602-c(3) of Education Law continues to authorize boards of education, with the consent of the Commissioner, to contract with BOCES, consistent with Education Law section 1950, to provide the services required by section 3602-c. 

16. Which school district is responsible for the provision of special education services to parentally placed nonpublic school students when the school district where the nonpublic school is located provides for the education of their students by contract with another school district (e.g., K-8, K-3, K-1 school district)? [Sections 2040-2045 of Education Law]

The school district of location is responsible to provide the special education services.  However, consistent with the manner in which services are provided to other students in their school district, the school district of location could negotiate in its contract with the receiving school district that such district would also provide special education services to parentally placed students with disabilities.

17. Are children who are age eligible (age 5 years by December 1) whose parents enroll them for an additional year in a preschool or nursery school program eligible for special education services pursuant to section 3602-c of Education Law?

No.  Section 3602-c of Education Law pertains only to parental placements in nonpublic elementary and secondary schools.  It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary grade classrooms. These students would continue to be the responsibility of the district of residence through the CSE.  

18. Does section 3602-c of Education Law require services to be provided to students with disabilities during the summer? 

No.  The definition of “services” in section 3602-c(1)(a) of the Education Law is limited to services provided in programs operated during the course of the regular school year and does not apply to  services provided in summer programs. 

19. Must the IESP indicate that the student has been parentally placed in a nonpublic school?

Yes.  Since an IESP must have the same components as an IEP, which includes a recommendation for placement, the IESP should indicate placement as “student is parentally placed in a nonpublic school.”

20. Are students parentally placed in a nonpublic school entitled to declassification support services?

No.  Only students who are enrolled in public schools are entitled to declassification support services.

Expenditure of Federal Funds

Note: See Questions and Answers on Serving Children with Disabilities Placed by their Parents in Private Schools (Revised February 2022) Section N, Proportionate Share Calculation for Equitable Services 
 

21. Can the proportionate share of federal funds be spent on child find activities, including the cost of the evaluation?

No.  Section 612(a)(10)(A)(ii) of IDEA (child find requirements) states that the cost of carrying out child find requirements may not be considered in determining whether a school district has met its obligations to expend a proportionate amount of federal funds.

22. Can the federal IDEA funds be given to the nonpublic school to provide the special education services?

No. The control of funds used to provide special education services and title to materials, equipment and property purchased with those funds must be in the public school district and the public school district must administer the funds and property.  34 CFR section 300.142 adds that “An local educational agency (LEA) may use funds available under sections 611 and 619 of the Act to pay for the services of an employee of a private school to provide services… if the employee performs the services outside of his or her regular hours of duty; and the employee performs the services under public supervision and control.”

23. What can the proportionate share of federal IDEA funds be spent on?

The proportionate share of federal dollars must be spent on the provision of special education services. The proportionate share of IDEA funds may not be spent on child find activities, including evaluations, nor may they be spent on administrative functions such as CSE meetings.  State and local funds may supplement and in no case supplant the proportionate amount of federal funds required to be expended pursuant to IDEA 2004.

Transportation

24. If special education services are to be provided to a student at a site other than the nonpublic school, which school district is responsible to arrange and pay for transportation necessary for the student to receive the special education services?

34 CFR section 300.139(b) requires the school district of location to provide a parentally-placed nonpublic elementary or secondary school student with a disability with transportation from the student's school or the student's home to a site other than the nonpublic school and from the service site to the nonpublic school, or to the student's home, depending on the timing of the services, if necessary for the student to receive special education services.  The cost of transportation can be included in determining whether the school district has met its requirement to expend a proportionate share of IDEA Part B dollars to serve parentally-placed nonpublic school students with disabilities. 

25. Which school district is responsible to provide transportation for the student to and from the student's home and the nonpublic school?

The school district of residence remains responsible to provide transportation to parentally placed nonpublic school students to and from the student’s home pursuant to section 3635 of Education Law.  However, if the district of location chooses to provide special education services to a student before or after the school day at its own school or another location, it must arrange transportation from the special education services to or from his or her home. For more information see the Handbook on Services to Pupils Attending Nonpublic Schools.
 

Section 4402(4)(d) of Education Law requires the district of residence to arrange for suitable transportation up to 50 miles to and from the nonpublic school the student attends when the student has been identified as a student with a disability by the CSE and such student attends such school for the purpose of receiving services or program similar to special educational programs recommended for such student by the CSE of the district of residence.