1412a10 Children in Private
Placements
1412a11 States Responsibility
for Educational Supervision
1412a14 State Responsibility
for the Development of Standards
1412a17 Statewide Assessments
1412a21 State Advisory Panel
1412b State provides Education
if LEA defaults
(a) In General.--A State is eligible for assistance under this part for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets each of the following conditions:
(1) Free appropriate public education.--
(B) Limitation.--The obligation to make a free appropriate public
education available to all children with disabilities does not apply with
respect to children:
(PWDW Note: This seems to mean that if a state decides not to provide educational services to regular education children who are between ages 3 and 5, then that state is not required to provide services to special education children. I participated in and testified before the "off the record" joint House Senate working committee that drafted IDEA 97. I did not hear any discussion about raising the age of entitlement. I have reviewed several articles about IDEA 97 and have not seen any reference to the above limitation, except in reference to incarcerated adults.)
(ii) aged 18 through 21 to the extent that State law does not require
that special education and related services under this part be provided to
children with disabilities who, in the educational placement prior to
their incarceration in an adult correctional facility:
(II) did not have an Individualized Education Program under this part.
(2) Full educational opportunity goal.--The State has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal.
(3) Child find.--
(B) Construction.--Nothing in this Act requires that children be classified by their disability so long as each child who has a disability listed in section 602 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this part.
(4) Individualized education program.--An individualized education program, or an individualized family service plan that meets the requirements of section 636(d), is developed, reviewed, and revised for each child with a disability in accordance with section 614(d).
(5) Least restrictive environment.--
(B) Additional requirement.--
(ii) Assurance.--If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that it will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements.
(6) Procedural safeguards.--
(B) Additional procedural safeguards.--Procedures to ensure that testing
and evaluation materials and procedures utilized for the purposes of evaluation
and placement of children with disabilities will be selected and administered
so as not to be racially or culturally discriminatory. Such materials or
procedures shall be provided and administered in the child’s native
language or mode of communication, unless it clearly is not feasible to do
so, and no single procedure shall be the sole criterion for determining an
appropriate educational program for a child.
(7) Evaluation.--Children with disabilities are evaluated in accordance with subsections (a) through (c) of section 614.
(8) Confidentiality.--Agencies in the State comply with section 617(c) (relating to the confidentiality of records and information).
(9) Transition from part c to preschool programs.--Children participating in early-intervention programs assisted under part C, and who will participate in preschool programs assisted under this part, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(8). By the third birthday of such a child, an individualized education program or, if consistent with sections 614(d)(2)(B) and 636(d), an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 637(a)(8).
(10) Children in private schools.--
(II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law.
(PWDW Note: Case law on this issue seems to be evolving
toward a majority rule that public schools do not have to provide any special
education services to children enrolled by their parents in a private school
if the public school has offered the child a FAPE. This is another area of
changing case law. After the June 4, 1997 enactment of the amendment to the
statute, a U. S. District Judge ruled that public funds could not be used
to fund services to a special education child who attended a parochial school
because this would violate the Establishment Clause of the U. S. Constitution.
This ruling seems to disregard the statute. The statute does include the
word "parochial.")
(ii) Child-find requirement.--The requirements of paragraph (3) of
this subsection (relating to child find) shall apply with respect to children
with disabilities in the State who are enrolled in private, including parochial,
elementary and secondary schools.
(B) Children placed in, or referred to, private schools by public
agencies.--
(ii) Standards.--In all cases described in clause (i), the State
educational agency shall determine whether such schools and facilities meet
standards that apply to State and local educational agencies and that children
so served have all the rights they would have if served by such agencies.
(C) Payment for education of children enrolled in private schools without
consent of or referral by the public agency.--
(ii) 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 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 a free appropriate public education available to the child in a timely manner prior to that enrollment.
(iii) Limitation on reimbursement.--The cost of reimbursement described in clause (ii) may be reduced or denied--
(bb) 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 division (aa);
(II) 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 section 615(b)(7), 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 such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions
taken by the parents.
(iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I),
the cost of reimbursement may not be reduced or denied for failure to provide
such notice if--
(II) compliance with clause (iii)(I) would likely result in physical or serious emotional harm to the child;
(III) the school prevented the parent from providing such notice; or
(IV) the parents had not received notice, pursuant to section 615, of
the notice requirement in clause (iii)(I).
To protect your rights as a parent-
B. You state your intent to enroll your child in a private school at public expense; or
2. Ten business days before removal, you must write a letter to the school in which -
B. You state your intent to enroll your child in a private school at public expense.
3. It is a good practice to tape record all IEP meetings. You must keep the tape recorder in the open, never hidden. Always use fresh batteries, have extra tapes, operate the recorder in a continuous record mode (not voice activated), and use an external microphone. You should practice using the recorder before the meeting. Learn how to adjust its sensitivity. You need to be familiar with any warning (or lack of warning) when the tape ends.
4. After every IEP meeting, it is good practice to write a courteous follow-up thank you letter. In these letters, you should express any concerns you have about your child’s program, progress, etc. End of PWDW NOTE)
(11) State educational agency responsible for general supervision.—
(ii) all educational programs for children with disabilities in the State, including all such programs administered by any other State or local agency--
(II) meet the educational standards of the State educational agency.
(B) Limitation.--Subparagraph (A) shall not limit the responsibility of agencies in the State other than the State educational agency to provide, or pay for some or all of the costs of, a free appropriate public education for any child with a disability in the State.
(C) Exception.--Notwithstanding subparagraphs (A) and (B), the Governor (or another individual pursuant to State law), consistent with State law, may assign to any public agency in the State the responsibility of ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons.
(12) Obligations related to and methods of ensuring services.--
(ii) Conditions and terms of reimbursement.--The conditions, terms, and procedures under which a local educational agency shall be reimbursed by other agencies.
(iii) Interagency disputes.--Procedures for resolving interagency disputes (including procedures under which local educational agencies may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.
(iv) Coordination of services procedures.--Policies and procedures for agencies
to determine and identify the interagency coordination responsibilities of
each agency to promote the coordination and timely and appropriate delivery
of services described in subparagraph (B)(i).
(B) Obligation of public agency.--
(ii) Reimbursement for services by public agency.--If a public agency other
than an educational agency fails to provide or pay for the special education
and related services described in clause (i), the local educational agency
(or State agency responsible for developing the child’s IEP) shall provide
or pay for such services to the child. Such local educational agency or State
agency may then claim reimbursement for the services from the public agency
that failed to provide or pay for such services and such public agency shall
reimburse the local educational agency or State agency pursuant to the terms
of the interagency agreement or other mechanism described in subparagraph
(A)(i) according to the procedures established in such agreement pursuant
to subparagraph (A)(ii).
(C) Special rule.--The requirements of subparagraph (A) may be met
through--
(ii) signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or
(iii) other appropriate written methods as determined by the Chief Executive Officer of the State or designee of the officer.
(13) Procedural requirements relating to local educational agency eligibility.--The State educational agency will not make a final determination that a local educational agency is not eligible for assistance under this part without first affording that agency reasonable notice and an opportunity for a hearing.
(14) Comprehensive system of personnel development.--The State has in effect, consistent with the purposes of this Act and with section 635(a)(8), a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel that meets the requirements for a State improvement plan relating to personnel development in subsections (b)(2)(B) and (c)(3)(D) of section 653.
(15) Personnel standards.--
(B) Standards described.--Such standards shall--
(ii) to the extent the standards described in subparagraph (A) are not based on the highest requirements in the State applicable to a specific profession or discipline, the State is taking steps to require retraining or hiring of personnel that meet appropriate professional requirements in the State; and
(iii) allow paraprofessionals and assistants who are appropriately trained
and supervised, in accordance with State law, regulations, or written policy,
in meeting the requirements of this part to be used to assist in the provision
of special education and related services to children with disabilities under
this part.
(C) Policy.--In implementing this paragraph, a State may adopt a policy
that includes a requirement that local educational agencies in the State
make an ongoing good-faith effort to recruit and hire appropriately and
adequately trained personnel to provide special education and related services
to children with disabilities, including, in a geographic area of the State
where there is a shortage of such personnel, the most qualified individuals
available who are making satisfactory progress toward completing applicable
course work necessary to meet the standards described in subparagraph (B)(i),
consistent with State law, and the steps described in subparagraph (B)(ii)
within three years.
In other states, certification requirements have shifted to general special education certifications, with no requirement for expertise or specialized training to work with specific disabilities. A lack of teacher specialization may reflect the incorrect assumption that disabled children's needs are the same, and that these children can receive remediation by a generalist with no specialized training. The expectation in these states seems to be that special educator know how to educate all disabled children - children with autism, specific learning disabilities, communication disorders, cerebral palsy, etc.)
(16) Performance goals and indicators.--The State--
(ii) are consistent, to the maximum extent appropriate, with other goals
and standards for children established by the State;
(B) has established performance indicators the State will use to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates;
(C) will, every two years, report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under subparagraph (A); and (D) based on its assessment of that progress, will revise its State improvement plan under subpart 1 of part D as may be needed to improve its performance, if the State receives assistance under that subpart.
(17) Participation in assessments.--
(ii) develops and, beginning not later than July 1, 2000, conducts those
alternate assessments.
(B) Reports.--The State educational agency makes available to the
public, and reports to the public with the same frequency and in the same
detail as it reports on the assessment of nondisabled children, the following:
(ii) The number of those children participating in alternate assessments.
(iii)
(II) Data relating to the performance of children described under subclause
(I) shall be disaggregated--
(bb) for assessments conducted before July 1, 1998, if the State is required to disaggregate such data prior to July 1, 1998.
(18) Supplementation of state, local, and other Federal funds.-- * * *
(19) Maintenance of state financial support.-- * * *
(20) Public participation.--Prior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the State ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities.
(B) Membership.--Such advisory panel shall consist of members appointed
by the Governor, or any other official authorized under State law to make
such appointments, that is representative of the State population and that
is composed of individuals involved in, or concerned with, the education
of children with disabilities, including--
(ii) individuals with disabilities;
(iii) teachers;
(iv) representatives of institutions of higher education that prepare special education and related services personnel;
(v) State and local education officials;
(vi) administrators of programs for children with disabilities;
(vii) representatives of other State agencies involved in the financing or delivery of related services to children with disabilities;
(viii) representatives of private schools and public charter schools;
(ix) at least one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities; and
(x) representatives from the State juvenile and adult corrections agencies.
(C) Special rule.--A majority of the members of the panel shall be individuals with disabilities or parents of children with disabilities.
(D) Duties.--The advisory panel shall--
(ii) comment publicly on any rules or regulations proposed by the State regarding the education of children with disabilities;
(iii) advise the State educational agency in developing evaluations and reporting on data to the Secretary under section 618;
(iv) advise the State educational agency in developing corrective action plans to address findings identified in Federal monitoring reports under this part; and
(v) advise the State educational agency in developing and implementing policies relating to the coordination of services for children with disabilities.
(22) Suspension and expulsion rates.--
(ii) compared to such rates for nondisabled children within such agencies.
(B) Review and revision of policies.--If such discrepancies are occurring, the State educational agency reviews and, if appropriate, revises (or requires the affected State or local educational agency to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of behavioral interventions, and procedural safeguards, to ensure that such policies, procedures, and practices comply with this Act.
(b) State Educational Agency as Provider of Free Appropriate Public Education or Direct Services.--If the State educational agency provides free appropriate public education to children with disabilities, or provides direct services to such children, such agency--
(1) shall comply with any additional requirements of section 613(a), as if such agency were a local educational agency; and
(2) may use amounts that are otherwise available to such agency under this part to serve those children without regard to section 613(a)(2)(A)(i) (relating to excess costs).
(c) Exception for Prior State Plans.-- * * *
(d) Approval by the Secretary.-- * * *
(e) Assistance Under Other Federal Programs.-- * * *
(f) By-Pass for Children in Private Schools.-- * * *
The comments and formatting were prepared by:
Peter W. D. Wright, Esq.
P. O. Box 1008
Deltaville, VA 23043
804-776-7008
http://www.wrightslaw.com
pwright@wrightslaw.com
© 1998 Peter W. D. Wright, Deltaville, Virginia.