34 C.F.R. Subpart D—Children in Private Schools
Title 34 - Education
Sections 300.401–300.402 apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services. (Authority: 20 U.S.C. 1412(a)(10)(B)) Each SEA shall ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency— (a) Is provided special education and related services— (1) In conformance with an IEP that meets the requirements of §§300.340–300.350; and (2) At no cost to the parents; (b) Is provided an education that meets the standards that apply to education provided by the SEA and LEAs (including the requirements of this part); and (c) Has all of the rights of a child with a disability who is served by a public agency. (Authority: 20 U.S.C. 1412(a)(10)(B)) In implementing §300.401, the SEA shall— (a) Monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires; (b) Disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a child with a disability; and (c) Provide an opportunity for those private schools and facilities to participate in the development and revision of State standards that apply to them. (Authority: 20 U.S.C. 1412(a)(10)(B))
Title 34: Education
PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
Subpart D—Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by Public Agencies
§ 300.400 Applicability of §§300.400–300.402.
§ 300.401 Responsibility of State educational agency.
§ 300.402 Implementation by State educational agency.
Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE Is at Issue
§ 300.403 Placement of children by parents if FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency shall include that child in the population whose needs are addressed consistent with §§300.450–300.462.
(b) Disagreements about FAPE. Disagreements between a parent and a public agency regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject to the due process procedures of §§300.500–300.517.
(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied—
(1) If—
(i) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in §300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement may not be reduced or denied for failure to provide the notice if—
(1) The parent is illiterate and cannot write in English;
(2) Compliance with paragraph (d)(1) of this section would likely result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing the notice; or
(4) The parents had not received notice, pursuant to section 615 of the Act, of the notice requirement in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(C))
Children With Disabilities Enrolled by Their Parents in Private Schools
§ 300.450 Definition of “private school children with disabilities.”
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 §§300.400–300.402.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.451 Child find for private school children with disabilities.
(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 §§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) 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))
§ 300.452 Provision of services—basic requirement.
(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 §§300.453–300.462.
(b) SEA Responsibility—services plan. Each SEA shall ensure that, in accordance with paragraph (a) of this section and §§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))
§ 300.453 Expenditures.
(a) Formula. To meet the requirement of §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 §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))
§ 300.454 Services determined.
(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 §§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 §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 §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 §§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 §§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 services plan for the child, in accordance with §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.
(Authority: 1412(a)(10)(A))
§ 300.455 Services provided.
(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 §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 §§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 §300.347, with respect to the services provided; and
(ii) Be developed, reviewed, and revised consistent with §§300.342–300.346.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.456 Location of services; transportation.
(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 §300.453.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.457 Complaints.
(a) Due process inapplicable. The procedures in §§300.504–300.515 do not apply to complaints that an LEA has failed to meet the requirements of §§300.452–300.462, including the provision of services indicated on the child's services plan.
(b) Due process applicable. The procedures in §§300.504–300.515 do apply to complaints that an LEA has failed to meet the requirements of §300.451, including the requirements of §§300.530–300.543.
(c) State complaints. Complaints that an SEA or LEA has failed to meet the requirements of §§300.451–300.462 may be filed under the procedures in §§300.660–300.662.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.458 Separate classes prohibited.
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))
§ 300.459 Requirement that funds not benefit a private school.
(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—
(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))
§ 300.460 Use of public school personnel.
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 §§300.450–300.462 for private school children with disabilities; and
(b) If those services are not normally provided by the private school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.461 Use of private school personnel.
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 §§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.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.462 Requirements concerning property, equipment, and supplies for the benefit of private school children with disabilities.
(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))
Procedures for By-Pass
§ 300.480 By-pass—general.
(a) The Secretary implements a by-pass if an SEA is, and was on December 2, 1983, prohibited by law from providing for the participation of private school children with disabilities in the program assisted or carried out under Part B of the Act, as required by section 612(a)(10)(A) of the Act and by §§300.452–300.462.
(b) The Secretary waives the requirement of section 612(a)(10)(A) of the Act and of §§300.452–300.462 if the Secretary implements a by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
§ 300.481 Provisions for services under a by-pass.
(a) Before implementing a by-pass, the Secretary consults with appropriate public and private school officials, including SEA officials, in the affected State to consider matters such as—
(1) The prohibition imposed by State law that results in the need for a by-pass;
(2) The scope and nature of the services required by private school children with disabilities in the State, and the number of children to be served under the by-pass; and
(3) The establishment of policies and procedures to ensure that private school children with disabilities receive services consistent with the requirements of section 612(a)(10)(A) of the Act and §§300.452–300.462.
(b) After determining that a by-pass is required, the Secretary arranges for the provision of services to private school children with disabilities in the State in a manner consistent with the requirements of section 612(a)(10)(A) of the Act and §§300.452–300.462 by providing services through one or more agreements with appropriate parties.
(c) For any fiscal year that a by-pass is implemented, the Secretary determines the maximum amount to be paid to the providers of services by multiplying—
(1) A per child amount that may not exceed the amount per child provided by the Secretary under Part B of the Act for all children with disabilities in the State for the preceding fiscal year; by
(2) The number of private school children with disabilities (as defined by §§300.7(a) and 300.450) in the State, as determined by the Secretary on the basis of the most recent satisfactory data available, which may include an estimate of the number of those children with disabilities.
(d) The Secretary deducts from the State's allocation under Part B of the Act the amount the Secretary determines is necessary to implement a by-pass and pays that amount to the provider of services. The Secretary may withhold this amount from the State's allocation pending final resolution of any investigation or complaint that could result in a determination that a by-pass must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
§ 300.482 Notice of intent to implement a by-pass.
(a) Before taking any final action to implement a by-pass, the Secretary provides the affected SEA with written notice.
(b) In the written notice, the Secretary—
(1) States the reasons for the proposed by-pass in sufficient detail to allow the SEA to respond; and
(2) Advises the SEA that it has a specific period of time (at least 45 days) from receipt of the written notice to submit written objections to the proposed by-pass and that it may request in writing the opportunity for a hearing to show cause why a by-pass should not be implemented.
(c) The Secretary sends the notice to the SEA by certified mail with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
§ 300.483 Request to show cause.
An SEA seeking an opportunity to show cause why a by-pass should not be implemented shall submit a written request for a show cause hearing to the Secretary.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.484 Show cause hearing.
(a) If a show cause hearing is requested, the Secretary—
(1) Notifies the SEA and other appropriate public and private school officials of the time and place for the hearing; and
(2) Designates a person to conduct the show cause hearing. The designee must not have had any responsibility for the matter brought for a hearing.
(b) At the show cause hearing, the designee considers matters such as—
(1) The necessity for implementing a by-pass;
(2) Possible factual errors in the written notice of intent to implement a by-pass; and
(3) The objections raised by public and private school representatives.
(c) The designee may regulate the course of the proceedings and the conduct of parties during the pendency of the proceedings. The designee takes all steps necessary to conduct a fair and impartial proceeding, to avoid delay, and to maintain order.
(d) The designee may interpret applicable statutes and regulations, but may not waive them or rule on their validity.
(e) The designee arranges for the preparation, retention, and, if appropriate, dissemination of the record of the hearing.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.485 Decision.
(a) The designee who conducts the show cause hearing—
(1) Issues a written decision that includes a statement of findings; and
(2) Submits a copy of the decision to the Secretary and sends a copy to each party by certified mail with return receipt requested.
(b) Each party may submit comments and recommendations on the designee's decision to the Secretary within 15 days of the date the party receives the designee's decision.
(c) The Secretary adopts, reverses, or modifies the designee's decision and notifies the SEA of the Secretary's final action. That notice is sent by certified mail with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.486 Filing requirements.
(a) Any written submission under §§300.482–300.485 must be filed by hand-delivery, by mail, or by facsimile transmission. The Secretary discourages the use of facsimile transmission for documents longer than five pages.
(b) The filing date under paragraph (a) of this section is the date the document is—
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for confirming that a complete and legible copy of the document was received by the Department.
(d) If a document is filed by facsimile transmission, the Secretary or the hearing officer, as applicable, may require the filing of a follow-up hard copy by hand-delivery or by mail within a reasonable period of time.
(e) If agreed upon by the parties, service of a document may be made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.487 Judicial review.
If dissatisfied with the Secretary's final action, the SEA may, within 60 days after notice of that action, file a petition for review with the United States Court of Appeals for the circuit in which the State is located. The procedures for judicial review are described in section 612(f)(3)(B)–(D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)–(D))
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