Memorandum

September 21, 1999

This memo includes the new federal rules, as well as the US Office of Special Education Programs OSEP's own analysis and interpretation of these rules. I believe that this information is critical to fully comprehend this complex and problematic law. For those who may find this 22-page memo less than thrilling, I have summarized the new federal rules changes in the first section of this memo .

Summary of IDEA-Part B Final Regulations
Parentally-Placed Children in Private Schools

Major Changes

Below are major changes to the Part B regulations regarding children with disabilities enrolled by their parents in private schools:

A. Replacing "IEPs" with "Services Plans."

Because "IEP" is an explicit term used in the definition of "FAPE" (and because parentally-placed children with disabilities in religious or other private schools are not entitled to FAPE in connection with their private school placements), the previous provisions related to IEPs for these children have been deleted, and have been replaced as follows:

1. Services plans.

The term "services plan" has been adopted for use with parentally placed children in private schools, in lieu of "IEP." Thus, each private school child with a disability who has been designated to receive Part B services "must have a services plan that describes the specific special education and related services that the LEA will provide to the child..." (See §300.455(b)(1).)

2. Services plans must meet specified IEP requirements

(i.e., to the extent appropriate, the services plan must -- (A) meet the IEP content requirements of §300.347, and (B) be developed, reviewed, and revised consistent with the IEP process requirements of §§300.342-300.346). (See §300.455(b)(2).)

3. SEA responsibility for services plans.

The final regulations make clear that the SEA -- in addition to ensuring IEPs for eligible public school children (see §300.341) -- is also responsible for ensuring that a services plan is developed for each private school child with a disability who has been designated to receive services under Part B. (See §300.452(b).)

B. Child Find for Children in Private Schools - Comparable to Public Schools.

The final regulations provide that -(1) child find activities for private school children with disabilities must be comparable to those in the public schools; and (2) public agencies must consult with appropriate representatives of private school children with disabilities on how to carry out those activities. (See §300.451.

C. Expenditures (child count; child find; additional funds).

The "expenditures" requirement in the final regulations includes the following new provisions:

1. Child count.

The regulations provide that each LEA must -- (A) consult with representatives of private school children with disabilities to decide how to conduct the annual count of the number of those children, and (B) ensure that the count is conducted on December 1 or the last Friday of October of each year. The regulations further provide that the count data must be used to determine the amount of Part B funds to be earmarked for these children in the next fiscal year.) (See §300.453(b).)

2. Child find expenditures may not be considered.

Expenditures for child find activities may not be considered in determining whether the LEA met the expenditures requirement in §300.453(a). (See §300.453(c)).

3. Additional services permitted.

SEAS and LEAS are not prohibited from providing services to private school children with disabilities beyond the services required by this part, consistent with State law or local policy (see §300.453(d)).

D. Services Determined

The final regulations specify that each LEA must:

1. Consult with representatives of private school children with disabilities on "where" services will be provided (see §300.454(b)(1));
2. Conduct meetings to develop, review, and revise a "services plan," in accordance with §300.455(b), for each private school child with a disability who has been designated to receive services under this part (see §300.454(c)(1)); and
3. Ensure that a representative of the private school attends, or otherwise participates in, each meeting (see §300.454(c)(2)).

E. Location of services.

The final regulations make clear that, while transportation might be provided between a child's home or private school and a service site (if necessary for the child to benefit from or participate in the services offered), LEAs are not required to provide transportation between the child's home and the private school. (See §300.456(b).)

F. Complaints (Due Process Applies Only to Child Find and Evaluation).

The final regulations specify that the due process procedures under Part B apply to child find activities for private school children with disabilities, including evaluations (but do not apply to the private school provisions under §§300.452-300.462). (See §300.457.)

 

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Section 300.450 Definition of "private school children with disabilities."

Rules:

As used in this part, private school children with disabilities means children with disabilities enrolled by their parents in private schools or facilities other than children with disabilities covered under Secs. 300.400-300.402. (Authority: 20 U.S.C. 1412(a)(10)(A))

Analysis of Section 300.450:

Comment:
Several commenters asked that the Department clarify whether children with disabilities who are home-schooled are included in the definition of ``private school children with disabilities''.

Discussion:
State law determines whether home schools are ``private schools.'' If the State recognizes home schools as private schools, children with disabilities in those home schools must be treated in the same way as other private school children with disabilities. If the State does not recognize home schools as private schools, children with disabilities who are home-schooled are still covered by the child find obligations of SEAs and LEAs, and these agencies must insure that home-schooled children with disabilities are located, identified and evaluated, and that FAPE is available if their parents choose to enroll them in public schools.

Changes:
None.

Interpretation of Section 300.450:

None

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Section 300.451 Child find for private school children with disabilities.

Rules:

(a.)
Each LEA shall locate, identify, and evaluate all private school children with disabilities, including religious-school children residing in the jurisdiction of the LEA, in accordance with Secs. 300.125 and 300.220. The activities undertaken to carry out this responsibility for private school children with disabilities must be comparable to activities undertaken for children with disabilities in public schools.
(b.)
(b) Each LEA shall consult with appropriate representatives of private school children with disabilities on how to carry out the activities described in paragraph (a) of this section. (Authority: 20 U.S.C. 1412(a)(10)(A)(ii))

Analysis of Section 300.451:

Comment:
Some commenters stated that there have been major difficulties in many areas of the country in ensuring that private school children with disabilities are identified and evaluated. These commenters requested that the regulation be revised to require that consultation with appropriate representatives of private school children occur before the public agency conducts child find activities and to provide that child find activities for parentally-placed private school children be done on the same or comparable timetable as for public school children. Another commenter requested that child find activities include children placed by their parents in private residential facilities.

Discussion:
The role of child find for parentally-placed private school children is very important for services for this population. Section 612(a)(10)(A)(i) and the regulations in Sec. 300.452 tie the amount of money that will be used for parentally-placed private school children with disabilities to the number of parentally-placed private school children with disabilities in each LEA. Clearly, the adequacy of the LEA's child find activities for parentally-placed private school children with disabilities will be crucial to determining how many children with disabilities are parentally-placed in private schools, and consequently, the amount of funds that must be spent by an LEA on special education and related services to parentally-placed private school children with disabilities. For these reasons, LEAs should consult with representatives of private school children with disabilities on how to conduct child find activities for parentally-placed private school children with disabilities in a manner that is comparable, which would include timing, to child find for public school children with disabilities. LEAs are required to conduct child find activities for children residing in their jurisdiction. Generally, as a matter of State law, children are considered to reside in the home of their parents even if they physically do not live there. Whether children who are in private residential facilities are residing in the jurisdiction of an LEA when that facility is within the boundaries of the LEA will be dependent on State law.

Changes:
The term "religiously-affiliated" has been replaced with "religious", to more accurately reflect the types of schools. The term "public agency" has been replaced with "LEA," a technical change. Paragraph (a) has been revised (see description of comments received under Sec. 300.453 regarding that revision). A new paragraph (b) has been added requiring public agencies to consult with representatives of parentally-placed private school students with disabilities on how to conduct child find activities for that population in a manner that is comparable to that for public school children.

Interpretation of Section 300.451:

The final regulations add a new paragraph (b) to require public agencies to consult with representatives of parentally-placed private school students on how to conduct child find. Paragraph (a) clarifies that the child find activities for parentally-placed children must be comparable to child find activities for children with disabilities in public schools. The consultation requirement may impose an additional burden but is expected to better enable school districts to carry out this mandatory function. The requirement for comparability does not impose any additional burden, but clarifies the intent of the statute, which does not distinguish between child find activities for children enrolled in public schools and those conducted for children in private schools.

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Section 300.452 Provision of services--basic requirement.

Rules:

(a.)
(a) General. To the extent consistent with their number and location in the State, provision must be made for the participation of private school children with disabilities in the program assisted or carried out under Part B of the Act by providing them with special education and related services in accordance with Secs. 300.453-300.462.
(b.)
SEA Responsibility--services plan. Each SEA shall ensure that, in accordance with paragraph (a) of this section and Secs. 300.454- 300.456, a services plan is developed and implemented for each private school child with a disability who has been designated to receive special education and related services under this part.(Authority: 20 U.S.C. 1412(a)(10)(A)(i))

Analysis of Section 300.452:

Comment:
None.

Discussion:
None.

Changes:
Consistent with the comments, discussion, and changes under Sec. 300.341, a new paragraph (b) has been added to Sec. 300.452 regarding the SEA's responsibility for ensuring that a services plan is developed and implemented for each private school child with a disability who has been designated to receive special education and related services under this part.

Interpretation of Section 300.452:

A paragraph has been added that clarifies that a services plan must be implemented for each parentally-placed private child who is receiving services under Part B. This clarification does not impose any additional burden.

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Section 300.453 Expenditures.

Rules:

(a)
Formula. To meet the requirement of Sec. 300.452(a), each LEA must spend on providing special education and related services to private school children with disabilities-- (1) For children aged 3 through 21, an amount that is the same proportion of the LEA's total subgrant under section 611(g) of the Act as the number of private school children with disabilities aged 3 through 21 residing in its jurisdiction is to the total number of children with disabilities in its jurisdiction aged 3 through 21; and (2) For children aged 3 through 5, an amount that is the same proportion of the LEA's total subgrant under section 619(g) of the Act as the number of private school children with disabilities aged 3 through 5 residing in its jurisdiction is to the total number of children with disabilities in its jurisdiction aged 3 through 5.

(b)
Child count. (1) Each LEA shall--(i) Consult with representatives of private school children in deciding how to conduct the annual count of the number of private school children with disabilities; and (ii) Ensure that the count is conducted on December 1 or the last Friday of October of each year. (2) The child count must be used to determine the amount that the LEA must spend on providing special education and related services to private school children with disabilities in the next subsequent fiscal year.

(c)
Expenditures for child find may not be considered. Expenditures for child find activities described in Sec. 300.451 may not be considered in determining whether the LEA has met the requirements of paragraph (a) of this section.

(d)
Additional services permissible. State and local educational agencies are not prohibited from providing services to private school children with disabilities in excess of those required by this part, consistent with State law or local policy. (Authority: 20 U.S.C. 1412(a)(10)(A)).

Analysis of Section 300.453:

Comment:
One commenter asked for clarification that there is no obligation to spend more than the total per capita Federal allocation to the LEA, and use of State or local funds are not required, for private school children. Another commenter requested that the note following this section be integrated into the regulation, as it provided valuable guidance to States. Several commenters were concerned that LEAs were suggesting that no services needed to be provided to private school students as a proportional share of the Federal funds was being used to conduct evaluations of these children. Another commenter asked whether a longstanding State program that allocates funding to be used for private school children for certain special education and related services and evaluations can be used to satisfy the requirements of this section. Several commenters noted the importance of determinations of the number of parentally-placed private school children with disabilities in calculating required expenditures and asked for specificity in how this number is determined. Another commenter requested that the Department require that each LEA separately account for funds used for private school children with disabilities and clarify that these funds are only to provide special education and related services and cannot be used to carry out activities such as child find.

Discussion:
It is important to clarify that there is a distinction under the statute between the obligation to conduct child find activities, including individual evaluations, for parentally-placed private school children with disabilities, and the obligation to use an amount of funds equal to a proportional amount of the Federal grant to provide special education and related services to parentally-placed private school children with disabilities. The obligation to conduct child find, including individual evaluations, exists independently from the services provision described in Secs. 300.452-300.456, and the costs of child find activities, such as evaluations, may not be considered in determining whether the LEA has spent the amount described in Sec. 300.453 on providing special education and related services to parentally-placed private school children with disabilities. The statute describes the minimum amount that must be spent on these services and does not specify that only Federal funds can be used to satisfy this obligation. Thus, if a State or LEA uses other funds to provide special education and related services to private school children, those funds can be considered in satisfying the provisions of Sec. 300.453, so long as the services are provided in accordance with the other provisions of Secs. 300.452-300.462. The statute does not prohibit a State or LEA from spending additional State or local funds to provide special education and related services to private school children. To make this important point, in light of the general decision to remove all notes from these regulations, the note that followed this section in the NPRM should be incorporated into this section as paragraph (d). Determining the number of parentally-placed private school children with disabilities is particularly important. Child find, which includes locating, identifying and evaluating children, is an ongoing activity that SEAs and LEAs should be engaged in throughout the year for all children in order to meet the statutory obligations to ensure that all children in the State are located, identified and evaluated and that all children have the right to FAPE. The statute does not distinguish between child find activities for children enrolled in public schools and those conducted for children enrolled in private schools. In addition, the importance of child find for determining the amount to be spent on services for parentally-placed private school children with disabilities also argues for clarity in the regulations that child find activities for private school children with disabilities must be comparable to child find activities conducted for children in public schools. Further regulation also is necessary on determining the number of parentally-placed private school children with disabilities so as to eliminate the potential for disputes about how to determine the number of private school children with disabilities that will be used as the basis for the calculation and to provide a clear standard for LEAs to meet. Possible alternative standards for who to count, such as private school children referred for evaluation, or private school children with disabilities who are receiving services pursuant to Secs. 300.450-300.462 are not consistent with the statutory language. Since LEAs and SEAs are already counting children with disabilities who are receiving special education and related services on December 1 or the last Friday in October of each year (the State decides which date to use on a State-wide basis) for funding and data reporting purposes, conducting the count of eligible parentally-placed private school children with disabilities on that date as well is reasonable, reduces the amount of double counting of private school children with disabilities who move from one location to another, and gives States the same flexibility they have with regard to counting children with disabilities who are receiving services. Furthermore, this count will provide the public agencies the basis on which they will be able, consistent with Sec. 300.454, to plan for the services that will be provided during the subsequent school year.

Changes:
A new paragraph (c) has been added to Sec. 300.453 to specify that the costs of child find activities for private school children with disabilities may not be considered in determining whether the LEA met the expenditures requirements of this section. A paragraph (d) has been added to clarify that States and LEAs are not prohibited from spending additional funds on providing special education and related services to private school children with disabilities. The note has been removed. Section 300.451 has been revised to specify that child find activities for parentally-placed private school children with disabilities be comparable to child find activities for children with disabilities in public schools. Section 300.453 has been revised to add a new paragraph (b) that specifies that each LEA consult with representatives of private school children with disabilities to decide how to conduct the count of the number of parentally-placed children with disabilities in private schools on December 1 or the last Friday of October for determining the amount that must be spent on providing special education and related services for private school children for the subsequent school year, and that the LEA ensure that count is conducted.

OSEP Interpretation of Section 300.453 :

A new paragraph (b) requires States to conduct a child count of private school children with disabilities and consult with representatives of private school children in deciding how to conduct that count. This count is necessary to enable States to determine how much they are required to spend on providing special education and related services to this population. A new paragraph (c) clarifies that the costs of child find for private school children may not be considered in determining whether the LEA met the requirement for proportionate expenditures on parentally-placed children. This provision does not impose any additional cost on school districts because it has been the Department's longstanding interpretation that child find includes the identification of children in private schools and that the cost of child find for private school children may not be considered in determining whether the LEA has met the requirements to serve children in private schools. Paragraph (d), which clarifies that States and LEAs are not prohibited from spending additional funds on providing special education and related services to parentally-placed children beyond what would be required, does not impose any additional costs. Paragraph (b) requires the LEA to conduct a child count of children with disabilities in private schools on the same day in which the overall count is conducted, to consult with private school representatives on conducting that annual count, and to use that count to determine required expenditures. Although the requirement to conduct the child count on a date certain limits LEA flexibility and the required consultation imposes a burden, both requirements help ensure that the child count accurately reflects the size of the private school population.

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Sec. 300.454 Services determined.

Rules:

(a)
No individual right to special education and related services. (1) No private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school. (2) Decisions about the services that will be provided to private school children with disabilities under Secs. 300.452-300.462, must be made in accordance with paragraphs (b), and (c) of this section.
(b)
Consultation with representatives of private school children with disabilities. (1) General. Each LEA shall consult, in a timely and meaningful way, with appropriate representatives of private school children with disabilities in light of the funding under Sec. 300.453, the number of private school children with disabilities, the needs of private school children with disabilities, and their location to decide-- (i) Which children will receive services under Sec. 300.452; (ii) What services will be provided; (iii) How and where the services will be provided; and (iv) How the services provided will be evaluated. (2) Genuine opportunity. Each LEA shall give appropriate representatives of private school children with disabilities a genuine opportunity to express their views regarding each matter that is subject to the consultation requirements in this section. (3) Timing. The consultation required by paragraph (b)(1) of this section must occur before the LEA makes any decision that affects the opportunities of private school children with disabilities to participate in services under Secs. 300.452-300.462. (4) Decisions. The LEA shall make the final decisions with respect to the services to be provided to eligible private school children.
(c)
Services plan for each child served under Secs. 300.450- 300.462. If a child with a disability is enrolled in a religious or other private school and will receive special education or related services from an LEA, the LEA shall--(1) Initiate and conduct meetings to develop, review, and revise a service plan for the child, in accordance with Sec. 300.455(b); and (2) Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the private school, including individual or conference telephone calls.

Analysis of Section 300.454:

Comment:
Several commenters requested clarification of "timely and meaningful" so that parents, private school representatives and LEAs would have a better understanding of how this process works. Various other suggestions included public notice of the consultation meetings, public transcripts of those meetings, and requiring explanations of refusals to provide service, and decisions on allocations of funds for services for private school children.

Discussion:
The needs of private school children with disabilities, their number and their location will vary over time and, depending on the circumstances in a particular LEA, will differ from year to year. However, an annual consultation with representatives of private school children is not required, since States and LEAs are best able to determine the appropriate period between consultations based on circumstances in their jurisdictions. Paragraph (b)(3) specifies that consultation must take place before decisions are made affecting the opportunities of private school children with disabilities to participate in the State's special education program which is assisted or carried out with Part B funds. The regulations on this consultation process have not been amended, in the expectation that all parties will treat others in the process with reason and respect.

Changes:
No change was made in response to these comments. See discussion of comments received under Sec. 300.350 regarding a change to Sec. 300.454.

OSEP Interpretation of Section 300.454:

The final regulations clarify that no private school child has an individual right to receive any of the services the child would receive if enrolled in a public school. This section further provides that each LEA shall consult with representatives of private school children in determining which children will receive services, what services will be provided, how and where services would be provided, and how they would be evaluated. The regulations make it clear that the representatives must have a genuine opportunity to express their views and that the consultation must be before the LEA makes its final decisions. The regulations also require the LEA to conduct meetings to develop a services plan for each private school child and to ensure the participation of a representative of the child's private school at the meeting. These regulations help ensure effective implementation of the provisions relating to serving parentally-placed children and impose minimal burden on school districts.

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Sec. 300.455 Services Provided.

Rules:

(a)
General. (1) The services provided to private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools.(2) Private school children with disabilities may receive a different amount of services than children with disabilities in public schools.(3) No private school child with a disability is entitled to any service or to any amount of a service the child would receive if enrolled in a public school.
(b)
Services provided in accordance with a services plan. (1) Each private school child with a disability who has been designated to receive services under Sec. 300.452 must have a services plan that describes the specific special education and related services that the LEA will provide to the child in light of the services that the LEA has determined, through the process described in Secs. 300.453-300.454, it will make available to private school children with disabilities.(2) The services plan must, to the extent appropriate--(i) Meet the requirements of Sec. 300.347, with respect to the services provided; and(ii) Be developed, reviewed, and revised consistent with Secs. 300.342-300.346.(Authority: 20 U.S.C. 1412(a)(10)(A))

Analysis of Section 300.455

Comments:
Several commenters expressed concern that using the term "IEP" in this section added to confusion over whether private school children served under these provisions were to receive all the services they need, or just those services that had been decided through the consultation process would be provided. Several suggested that a different term, "statement of special education and related services to be provided'' be substituted. Other commenters objected to the definition of a term "comparable in quality'' not used in the statute.

Discussion:
The use of the term "IEP" could result in confusion about whether these children receive all the services they would have received if enrolled in a public school. A different term, services plan, will be used. However, to the extent appropriate given the services that the LEA has selected through the consultation process described in Sec.300.454, that services plan must meet the requirements for an IEP in order to ensure that the services are meaningfully related to a child's individual needs. For example, in almost all instances, the services plan developed for an individual private school child with a disability would have to meet the requirements of Sec. 300.347(a)(1)-(4), (6) and (7).Whether those statements would also have to meet the requirements of Sec. 300.347(a)(5), (b) and (c) would depend on the services that are to be provided to the parentally-placed private school student with a disability. Paragraph (c) provides useful guidance to LEAs and parents that will prevent disputes. That content will be retained, but the definition should be eliminated.

Changes:
Paragraph (a) has been re-titled "General." Paragraph (b) has been revised by referring to a services plan instead of an IEP and by specifying that, for the services that are provided, the services plan, to the extent appropriate, must meet the content requirements for an IEP (Sec. 300.347) and be developed consistent with Secs. 300.342-300.346. The useful content from paragraph (c) of the NPRM has been incorporated into paragraph (a).

OSEP Interpretation of Section 300.455:

Services to children in private schools--The final regulations clarify that services provided private school children must be provided by personnel meeting SEA standards; that in private schools may receive different amounts of services than children in public schools; and that there is no individual entitlement to services; each child to be provided services must have a services plan. These changes do not impose any additional costs on school districts; indeed they reflect the Department's longstanding interpretation of the provisions relating to serving parentally-placed children.

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Section 300.456 Location of services; transportation.

Rules:

(a)
On-site. Services provided to private school children with disabilities may be provided on-site at a child's private school, including a religious school, to the extent consistent with law.
(b)
Transportation. (1) General. (i) If necessary for the child to benefit from or participate in the services provided under this part, a private school child with a disability must be provided transportation--(A) From the child's school or the child's home to a site other than the private school; and(B) From the service site to the private school, or to the child's home, depending on the timing of the services.(ii) LEAs are not required to provide transportation from the child's home to the private school. (2) Cost of transportation. The cost of the transportation described in paragraph (b)(1)(i) of this section may be included in calculating whether the LEA has met the requirement of Sec. 300.453.(Authority: 20 U.S.C. 1412(a)(10)(A))

Analysis of Section 300.456

Comment:
Some commenters requested that the Department require services to children in private schools be provided on-site, stating that providing services at a neutral site is disruptive and time consuming. Another asked for more specificity as to the phrase "consistent with law.'' Several commenters objected to the treatment of transportation in Sec. 300.456(b), some stating that there is no individual right to transportation under the Act, while others noted that providing transportation services could use all the funds available for special education and related services. Others asked why a certain related service (transportation) had been singled out for special treatment.

Discussion:
Decisions about whether services will be provided on-site or at some other location should be left to LEAs, in consultation with representatives of private school children. Although in many instances on-site services are most effective, local considerations should allow flexibility in this regard. A change should be made to Sec. 300.454(b)(1) to make clear that where services are provided is subject to consultation with representatives of private school children. The phrase "consistent with law'' is statutory. As Note 1 following this section indicated, the Department's position, based on the decisions of the Supreme Court in Zobrest v. Catalina Foothills School Dist. (1993) and Agostini v. Felton (1997) is that there is no Federal constitutional prohibition on providing publicly-funded special education and related service on-site at private, including religious schools. These decisions make clear that LEAs may provide special education and related services on-site at religious private schools in a manner that does not violate the Establishment Clause of the First Amendment to the U.S. Constitution. While the statute and regulation do not require the provision of services on-site to private school children, to the extent it is possible to do so, LEAs are encouraged to provide those services at private school sites so as to minimize the amount spent on necessary transportation and to cause the least disruption in the children's education. However, State constitutions and laws must also be consulted when making determinations about whether it is consistent with law to provide services on-site at a religious school. If services are offered at a site separate from the child's private school, transportation may be necessary in order to get the child from one site to the other, or the child may be effectively denied an opportunity to benefit. In this sense then, transportation is not a related service but is a means of making the services that are offered accessible. LEAs should work in consultation with representatives of private school children to ensure that services are provided at sites that will not require significant transportation costs. In light of the decision to remove notes from the final regulations, paragraph (b) of this section should be revised to incorporate the concept from the note that transportation does not need to be provided between the child's home and the private school.

Changes:
Section 300.456 has been re-titled ``Location of services; transportation.'' technical change has been made to paragraph (a) to refer to religious schools rather than religiously-affiliated schools. Paragraph (b) has been revised to explain when transportation is required. Section Sec. 300.454(b)(1)(iii) has been revised to specify that where services are provided is a subject of consultation between the LEAs and representatives of private school children. The notes following this section in the NPRM have been removed.

OSEP Interpretation of Section 300.456:

Consistent with the Department's longstanding interpretation, the final regulations state that transportation must be provided to private school children if necessary to enable them to benefit from the services that are offered. The regulations also clarify that the cost of providing the transportation may be included in calculating whether the LEA has met its financial obligations. The final regulations further clarify that the LEA is not required to provide transportation between the child's home and the private school. These clarifications could reduce the potential cost for school districts of complying with the requirement for proportionate expenditures.

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Section 300.457 Complaints.

Rules:

(a)
Due process inapplicable. The procedures in Secs. 300.504- 300.515 do not apply to complaints that an LEA has failed to meet the requirements of Secs. 300.452-300.462, including the provision of services indicated on the child's services plan.
(b)
Due process applicable. The procedures in Secs. 300.504-300.515 do apply to complaints that an LEA has failed to meet the requirements of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
(c)
State complaints. Complaints that an SEA or LEA has failed to meet the requirements of Secs. 300.451-300.462 may be filed under the procedures in Secs. 300.660-300.662. (Authority: 20 U.S.C. 1412(a)(10)(A))

Analysis of Section 300.457:

Comment:
Several commenters objected to Sec. 300.457(a) because they believed that a child in a private school should be able to receive a due process hearing on complaints about services once the LEA has decided to provide services to that child. Most of those commenters indicated that there may be legitimate issues regarding whether the LEA complied with obligations to a specific child it had agreed to serve. One commenter agreed with the position in the NPRM that if FAPE does not apply to private school children, due process also would not apply. Another commenter suggested that due process also should not apply to the child find obligations described in Sec. 300.451.

Discussion:
Section 615(a) of the Act specifies that the procedural safeguards of the Act apply with respect to the provision of FAPE to children with disabilities. The special education and related services provided to parentally-placed private school children with disabilities are independent of the obligation to make FAPE available to these children. While there may be legitimate issues regarding the provision of services to a particular parentally-placed private school child with disabilities an LEA has agreed to serve, due process should not apply, as there is no individual right to these services under the IDEA. Disputes that arise about these services are properly subject to the State complaint procedures, which are available to address noncompliance with any requirement of Part B. On the other hand, child find is a part of the basic obligation to make a FAPE available to all children with disabilities in the jurisdiction of the public agency, and so failure to properly evaluate a parentally-placed private school child would be subject to due process.

Changes:
A new paragraph (b) has been added to specify that due process procedures do apply to child find activities, including evaluations.

OSEP Interpretation of Section 300.457:

The final regulations make it clear that due process procedures do not apply to parentally-placed children. This clarification will reduce costs to the extent that LEAs have allowed parents to use the due process procedures to bring complaints relating to parentally-placed children. This section also clarifies that due process procedures do apply to child find. This change will increase costs to the extent that parents were unaware of their ability to bring complaints about child find and now do so.

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Section 300.458 Separate classes prohibited

Rules:

An LEA may not use funds available under section 611 or 619 of the Act for classes that are organized separately on the basis of school enrollment or religion of the students if -
(a)
The classes are at the same site; and
(b)
The classes include students enrolled in public schools and students enrolled in private schools.(Authority: 20 U.S.C. 1412(a)(10)(A))

Analysis of Section 300.458:

No Analysis

OSEP Interpretation of Section 300.458:

None

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Section 300.459 Requirement that funds not benefit a private school.

Rules:

(a)
An LEA may not use funds provided under section 611 or 619 of the Act to finance the existing level of instruction in a private school or to otherwise benefit the private school.
(b)
The LEA shall use funds provided under Part B of the Act to meet the special education and related services needs of students enrolled in private schools, but not for-n(1) The needs of a private school; or (2) The general needs of the students enrolled in the private school. (Authority: 20 U.S.C. 1412(a)(10)(A))

Analysis of Section 300.459:

Comment:
One commenter asked how an LEA is to discern whether funds are being used to benefit the private school. Another questioned whether this provision is consistent with other provisions that allow funds to be used by an LEA to provide staff development for special and regular education personnel, consultative services and provisions that permit other children to also benefit when a teacher or other provider is providing special education or related services to a child with a disability.

Discussion:
LEAs should use reasonable measures in assessing whether Federal funds are being used to benefit private schools. This provision does not prohibit private school teachers from participating in staff development activities regarding the provisions of IDEA when their participation can be accommodated. If consultation services are provided to a private school teacher as a means of providing special education and related services to a particular private school child with a disability and that teacher uses the acquired skills in providing education to other children, whatever benefit those other children receive is incidental to the publicly funded services and is not prohibited by this provision. On the other hand, if an LEA simply gave a private school an amount of money rather than itself providing or purchasing services for parentally-placed private school children with disabilities, in addition to violating the requirements of Secs. 300.453 and 300.454, would raise very significant concerns about compliance with Sec. 300.459(a). In the interest of regulating only where necessary, the regulations do not further specify measures of when a private school is benefiting from the Federal funds.

Changes:
None.

OSEP Interpretation of Section 300.459:

None

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Section 300.460 Use of public school personnel.

Rules:

An LEA may use funds available under sections 611 and 619 of the Act to make public school personnel available in other than public facilities--
(a)
To the extent necessary to provide services under Secs. 300.450-300.462 for private school children with disabilities; and
(b)
If those services are not normally provided by the private school.

Analysis of Section 300.460:

None

OSEP Interpretation of Section 300.460:

None

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Sec. 300.461 Use of private school personnel.

Rules:

An LEA may use funds available under section 611 or 619 of the Act to pay for the services of an employee of a private school to provide services under Secs. 300.450-300.462 if-
(a)
The employee performs the services outside of his or her regular hours of duty; and
(b)
The employee performs the services under public supervision and control.

Analysis of Section 300.461:

Comment:
One commenter noted that private school personnel used to provide services to private school children under Part B should be required to meet the same standards as public school employees providing those services to public or private school children.

Discussion:
Section 300.455 specifies that services provided to private school children must be provided by personnel meeting the same standards as those providing services in public schools. This would apply to private school personnel who, under Sec. 300.461, are being used to provide services under Secs. 300.450-300.462 to private school children with disabilities.

Changes:
A technical change has been made to Sec. 300.461 to make clear that the services addressed are those provided in accordance with

OSEP Interpretation of Section 300.461:

None

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Sec. 300.462 Requirements concerning property, equipment, and supplies for the benefit of private school children with disabilities.

Rules:

(a)
A public agency must keep title to and exercise continuing administrative control of all property, equipment, and supplies that the public agency acquires with funds under section 611 or 619 of the Act for the benefit of private school children with disabilities.
(b)
The public agency may place equipment and supplies in a private school for the period of time needed for the program.
(c)
The public agency shall ensure that the equipment and supplies placed in a private school- (1) Are used only for Part B purposes; and (2) Can be removed from the private school without remodeling the private school facility.
(d)
The public agency shall remove equipment and supplies from a private school if- (1) The equipment and supplies are no longer needed for Part B purposes; or (2) Removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes.
(e)
No funds under Part B of the Act may be used for repairs, minor remodeling, or construction of private school facilities. (Authority: 20 U.S.C. 1412(a)(10)(A))

OSEP Analysis of Section 300.462):

Comment:
One commenter asked whether costs for inventory control can be considered as a part of the proportionate share of the LEA's Part B funds that are to be expended for providing services to private school children. The commenter also asked for specificity regarding the procedures to be used for maintaining administrative control of all property, equipment and supplies acquired for the benefit of private school children.

Discussion:
Reasonable and necessary costs for inventory control of property, equipment and supplies located in a private school related to providing special education and related services to private school children with disabilities can be considered a part of the cost of providing special education and related services to private school children with disabilities. Effective procedures for ensuring administrative control will vary depending on local considerations.

Changes:
None.

OSEP Interpretation of Section 300.462:

None