ISSUE BRIEF FOR LEGAL ADVOCATES
Issues in the New IDEA Regulations: Charter School and Private School Student Provisions
Prepared by Eileen Ordover
Center for Law and Education
April 1999
On March 12, 1999, the U.S. Department of Education issued revised, final regulations implementing part B of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., as amended in 1997. (1) This fact sheet addresses the new regulations' treatment of two issues: the obligations of public charter schools, and the rights of children with disabilities who attend, at their parents' behest, private schools.
Charter Schools
What are charter schools?
IDEA and the new regulations address charter schools without defining them. There is no
uniform legal definition of "charter schools," which are creatures of state law. Generally speaking,
charter schools are publicly-funded schools that are exempted, pursuant to the relevant state enabling
law, from many of the rules and regulations that ordinarily apply to public schools in the jurisdiction.
State enabling legislation details the scope of these exemptions, the legal status of charter schools, and
the procedures and requirements for obtaining a "charter" to operate such a school. State law also
specifies which public entities -- e.g., the state board of education, local school districts, etc. -- may
issue charters for particular schools. Again depending upon state law, charter schools may be created
and operated by parents, teachers, other individuals, non-profit organizations or, in some cases, for-profit entities. A charter school may be part of a local education agency (school district), a local
education agency in and of itself, or a free-standing entity with some other legal status.
Advocates addressing charter school issues in their states should be aware, however, of the definition of "charter school" applicable to the federal program that provides charter schools with start-up funds for program planning, design and initial implementation. (2) For purposes of this law a "charter school" is defined as one that, inter alia, complies with IDEA (as well as with Section 504 of the Rehabilitation Act). (3) Charter schools that do not do so should not be receiving federal charter school funds, and may be subject to other legal challenges and sanctions.
How does IDEA itself address charter schools?
IDEA as amended in 1997 contains two provisions explicitly addressing charter schools. The
first deals with charter schools that are part of a local educational agency (LEA), and provides that the
LEA (a) must serve children with disabilities attending those schools in the same manner that it serves
children with disabilities in its other schools, and (b) must provide IDEA funds to those schools in the
same manner as it does to its other schools. (4) The second provision deals with charter schools that are
LEAs in and of themselves, and prohibits the state educational agency (SEA) from requiring such a
charter school to jointly establish its eligibility for IDEA funds with another LEA unless the state's
charter school statute explicitly allows the SEA to do so. (5) The statute is silent as to charter schools
that are neither LEAs nor part of an LEA, although the Congressional committee reports on the 1997
amendments each state that "[t]he Committee expects that charter schools will be in full compliance
with Part B." (6)
How do the new regulations treat charter schools and charter school students?
First, the regulations state at the outset that they apply to public charter schools, regardless of
whether they are part of an LEA, are an LEA in and of themselves, or are some other kind of entity. (7)
Further, the regulations define the term "public agency" to include public charter schools that are not
otherwise included as LEAs, and are not a school of an LEA. (8) Charter schools that are LEAs are
public agencies within the regulatory definition by virtue of their LEA status. As for charter schools
that are part of an LEA, the LEA itself is a public agency (and must serve students of its charter
schools just as it serves children in its other schools, and provide the charter with IDEA funds just as
it does other schools). (9) Thus, under the regulations, all public charter schools are either public
agencies in and of themselves, or part of another public agency.
Public agency status is critical, as the regulations in general impose the core obligations regarding the provision of a free appropriate public education (FAPE) upon a "public agency." For example, "[e]ach public agency shall ensure that a full and individual evaluation is conducted for each child....," "[e]ach public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the individualized education program (IEP) of a child with a disability....," and "[e]ach SEA shall ensure that each public agency establishes, maintains and implements procedural safeguards...." (10) Since all public charter schools are public agencies (or part of a public agency), all must comply with these provisions.
Finally, the regulations stress that "[c]hildren with disabilities who attend charter schools and their parents retain all rights under this part," (11) and that charter schools, like other public agencies that provide special education and related services to children with disabilities, must comply with the IDEA regulations regardless of whether or not they receive IDEA funds. (12)
Private School Children with Disabilities
[Note: The following discussion addresses only the topic of children whose parents enroll them in private schools because they want them to receive a private school education. It does not encompass children placed in private schools by a public agency, or children enrolled by their parents as part of a dispute regarding the public agency's provision of FAPE.]
"To the extent consistent with the number and location in the State of children with disabilities who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out by this part by providing for such children special education and related services in accordance with the following requirements....
(I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part.
(II) Such services may be provided to children with disabilities on the premises of private, including, parochial, schools to the extent consistent with state law..." (13)
Further, subject to this provision, a school system need not "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 a free appropriate public education available to the child and the parents elected to place the child in such private school or facility." (14)
IDEA thus now limits the amount of money an LEA has to spend on private school children, and, on its face, appears to make the provision of on-site services discretionary and dependent upon state law. In terms of expenditures, local educational agencies need only spend a proportionate share of their federal IDEA funds on serving private school children; they need not spend any state or local funds, unless state law otherwise requires.
How does child find apply to private school students?
Both the statute and the regulations require LEAs to locate, identify and evaluate private
school children with disabilities residing in the jurisdiction, including sectarian-school students. (15)
Parents may file a complaint and have a due process hearing (or file a compliance complaint with the
SEA) over an LEA's failure to comply with child find requirements, including the failure to comply
with the detailed evaluation requirements of the statute and regulations. (16)
Do private school students have an individual entitlement to services?
The regulations provide that no private school child has an individual right to receive services
-- not even up to a pro rata share of the proportional amount of IDEA funds expended on private
school children. (17) Decisions as to which children will receive services, what services will be provided
and how and where they will be provided are to be made by the LEA, after "timely and meaningful"
consultation with "appropriate" representatives of private school children. (18)
These decisions must be made in light of available funding and the number of private school children with disbailities, their needs and their location. (19) They may not be challenged through IDEA's due process hearing procedures, but may be the subject of a compliance complaint to the SEA. (20) Consultation with representatives of private school children must occur before the LEA makes any decision that affects opportunities for such children to participate in services. (21)
What requirements apply to children who do receive services?
Each child designated to receive services is to have what the regulations call a "services plan"
describing the specific special education and related services to be provided. (22) The plan must meet
the IDEA criteria for IEP development, review and revision, and for content with respect to the
services to be provided, "to the extent appropriate." (23) The LEA must ensure that a representative of
the private school attends meetings held to develop, review or revise the services plan, or use other
methods to ensure participation if a representative cannot attend. (24) Personnel serving private school
children must meet the same standards as personnel providing services in the public schools. (25) If
necessary for the child to benefit from or participate in the services, the LEA must provide
transportation from the child's school or the child's home to a site other than the private school, and
from the service site to the private school or the home. (26)
Pursuant to the regulations, IDEA's due process hearing procedures do not apply to complaints that an LEA has violated these requirements, including a complaint that it has failed to provide services included in a child's services plan. However, a compliance complaint may be filed with the SEA. (27)
NOTES
1. The regulations in their entirety may be found at 64 Federal Register 12406 et seq. (March 12, 1999).
2. See 20 U.S.C. §§8061 through 8067, as amended by the Charter School Expansion Act of 1998, Pub. L. 105-278, 112 Stat. 2682 (October 22, 1998), sec. 3.
3. 20 U.S.C. §8066(1)(G). Subsection (1)(G) pre-dates the 1998 amendments.
4. 20 U.S.C. §1413(a)(5).
5. 20 U.S.C. §1413(e)(1)(B). Ordinarily, the SEA may compel an LEA to establish its IDEA eligibility jointly with another if the SEA determines that the LEA would not be able to establish and maintain programs of sufficient size and scope to effectively meet student needs. See 20 U.S.C. §1413(e)(1)(A).
6. H. Rep. 105-95 at 97; Sen. Rep. 105-17 at 17.
7. See new 34 C.F.R. §300.2(b)(1)(ii), 64 Fed. Reg. at12421 (March 12, 1999).
8. 34 C.F.R. §300.22, 64 Fed. Reg. at 12423 (March 12, 1999).
9. See new 34 C.F.R. §300.241, 64 Fed. Reg. at 12434 (March 12, 1999).
10. 34 C.F.R. §§300.320, 300.343, 300.500, 64 Fed. Reg. at 12439, 12440, 12448 (March 12, 1999).
11. 34 C.F.R. §300.312(a), 64 Fed. Reg. at 12439 (March 12, 1999).
12. 34 C.F.R. §300.2(b)(2), 64 Fed. Reg. at 12421 (March 12, 1999).
13. 20 U.S.C. §1412(a)(10)(A)(i) (emphasis added).
14. 20 U.S.C. §1412(a)(10)(C).
15. 20 U.S.C. §1412(a)(10)(A)(ii); 34 C.F.R. §300.451, 64 Fed. Reg. 12445 (March 12, 1999).
16. 34 C.F.R. §300.457, 64 Fed. Reg. at 12446 (March 12, 1999).
17. 34 C.F.R. §§300.454(a)(1), 300.455(a)(3), 64 Fed. Reg. 12445, 12446 (March 12, 1999).
18. 34 C.F.R. §300.454(b)(1), (4), 64 Fed. Reg. 12445-46 (March 12, 1999).
19. Id.
20. 34 C.F.R. §300.457(a), (c), 64 Fed. Reg. at 12446 (March 2, 1999).
21. 34 C.F.R. §300.454(b)(3), 64 Fed. Reg. as 12446 (March 12, 1999).
22. 34 C.F.R. §300.455(a)(b)(1), 64 Fed. Reg. at 12446 (March 12, 1999).
23. 34 C.F.R. §300.455(b)(2), 64 Fed. Reg. at 12446 (March 12, 1999).
24. 34 C.F.R. §300.454(c)(2), 64 Fed. Reg. at 12446 (March 12, 1999).
25. 34 C.F.R. §300.455(a)(1), 64 Fed. Reg. 12446 (March 12, 1999).
26. 34 C.F.R. §300.456(b), 64 Fed. Reg. at 12246 (March 12, 1999).
27. 34 C.F.R. §300.457, 64 Fed. Reg. at 12446 (March 12, 1999).