Private Schools and IEPs: Are Private Schools Required to Follow an IEP?

Inside: Private schools can provide special education but are not required to provide FAPE. It gets complicated, so read on to fully understand your rights and risks when it comes to Private Schools and IEPs.

Private schools and IEP laws…what do you need to know? Do private schools have to follow IEPs? I have recently changed my opinion about private schools and IEP law. Let me explain why.

Let’s dig into this and answer it once and for all. Do private schools have to honor an IEP, provide one, follow it, or provide special education? Can you get an IEP at a private school?

It’s not a simple answer nor a “one size fits all” answer. And let me first explain to you the difference between special education and FAPE.

Private Schools and IEPs

You must understand this if you send your child to a private school providing special education.

• Special education is specially designed instruction. It’s the very specific interventions that your child needs to learn. If your child has an IEP in a public school, they receive special education.
• FAPE is the legal term defined by the US Supreme Court that guarantees a disabled child their education. FAPE stands for Free and Appropriate Education. If your child has an IEP in a public school, in theory, they are guaranteed FAPE. I say this in theory because my website wouldn’t be necessary if this were regularly happening.
• Ok, here’s the main point: Not all special education provided to children is FAPE.

And here’s what I mean by that. A private school can provide special education. In recent years I have seen a significant increase in private schools who are offering special education.

You can pay private school tuition and get interventions at some private schools.

That does not mean you are receiving FAPE.

First, it’s not free. You’re paying for the private school.

Second, because it’s a private school, they are not obligated to provide FAPE. What that means is that if it doesn’t work out, you have no recourse.

This isn’t automatically a bad thing. Many children are doing well in private schools and receiving better and more appropriate interventions than if they had remained in public school.

Still, if it doesn’t work out, you cannot file for Due Process or ask for compensatory education or anything like that. It is a leap of faith.

And this is where my opinion has changed. If you have the means to do this and you want to do it, I say go for it. I used to say, “No! Stay and fight for your rights! Don’t give up FAPE!”

But I see so many kids whose needs are not being served. I feel it’s irresponsible of me to advise against doing what your family can provide. Whether that’s through tuition or financial aid or however you get there.

And I do see a lot of kids doing well in these situations.

Philosophically, this is still hard on me. Because I feel this can widen the gap between the haves and the have-nots. On the other hand, if a few IEP students leave a district, ideally, that frees up some funding to spread around to the other kids who need it.

Do Private Schools Have to Provide Special Education?

The main governing statute of special education is IDEA. That defines an IEP, outlines the evaluation process, and so on.

Private schools do not have to follow IDEA. Full stop. (because I can hear some of you going but, but…please, read on)

The elephant in the room is that our kids are more expensive to educate. We know this. The fact that we have to try and hide this secret is unacceptable, but that’s a rant for another day. But they are–supports, services, it adds up.

So why would a school do something expensive that they are not required to do? Most don’t.

But a recent trend is that many private schools provide mild to moderate special education.

But I know someone who has an IEP in a private school!

Right, that may be true. Private schools can provide special education, but they are not required to. That’s the difference.

Personally, I think it’s just poor practice to call it an IEP if you are not offering FAPE. Many private schools call them “learning plans” or have a specific name for the program. A Catholic school near me calls it the “Emmaus Program.”

As an example, they are providing this in their “skills and strategies” course as part of their special education program.

This group instruction is a required course for qualifying freshman and sophomores. These courses offer small group instruction to students who require assistance in reading comprehension and vocabulary skills, organizational skills, study skills, time management, and test taking strategies. This course also incorporates critical thinking skills and stresses the reading writing connection. In addition, students benefit from various reading applications that diagnose reading proficiencies and provide opportunities for students to become strategic readers. 

(worth noting this school only has grades 9-12)

I have had several clients whose parents decided to send their kids to this school, and they are doing well there.

Let me add that all of these students are those with mild disabilities. A student like my son would likely not be welcome in any of these situations.

What private schools provide special education?

Some private schools provide special education–interventions, specific curricula, etc. Others provide related services. Special education can kinda get chopped up when it comes to private schools.

If your child is entitled to FAPE, that would mean specially designed instruction and related services. In a private school, the school may choose to only provide the related service as a way of attracting more students to the private school.

You’re going to have to look around online, make appointments and do visits.

So, only approved schools provide IEPs?

If you are talking about the legal term IEP, then yes. But a private school may provide special education, but that still does not mean your child is entitled to FAPE.

Some private schools call them Service Plans, Learning Plans…all kinds of different names.

They may even call it an IEP, which may be confusing. It’s always best to learn IDEA and the state regulations yourself and not rely on someone else’s interpretation of them.

Do Private Schools have to follow IEPs?

Usually no.

There is only one circumstance when a private school has to follow the IEP.

That is–when that private school is the child’s IEP placement.

You then have a “private placement at public expense,” and your child is there, per their placement on their IEP.

But we got a private placement and everything, with an attorney!

First, I am truly sorry that this happens to so many families. They spent the time and money on an attorney and still do not understand what they agreed to.

I get way too many emails about this!

If you hire an attorney, more often than not, you are going to enter a “settlement agreement.” I’m not a lawyer, nor do I play one on the internet.

However, about 90% of all Due Process cases end in a settlement agreement.

What this means is that you (with the help of your attorney) and the school came to an agreement without actually going through due process, even though you may have initially filed for due process.

Many times, these settlement agreements include a FAPE waiver. Speak with your attorney who did this, and they can further guide you if the settlement agreement is not working out for you. However, if you waived FAPE, you have little recourse.

My private school is providing special education, so who cares about FAPE?

That’s fine if you’re happy; the child is happy and making progress. However, you have zero recourse if things go south with the school.

Your child is receiving special education or services, but you are not entitled to your procedural safeguards.

There is no obligation for them to change what they are doing.

And things are always going well…until they’re not. It’s a risk, so be aware of your risks.

Do Private Schools have to follow ADA/504?

Mostly, sort of. If a child’s needs can be reasonably accommodated, and it’s only accommodations, the private school must follow ADA and 504. There’s one of those words again–reasonable.

What a parent thinks is reasonable and what a school thinks is reasonable often varies.

How do I know what I signed up for with a private school?

A good question to ask yourself is this: Who is the LEA in your child’s situation?

If the public school district in which you reside is not considered an LEA for your child, then you have no expectation of FAPE.

Are Private Schools Bound to Child Find?

I have previously done a blog post explaining what Child Find is. But it’s important to note that identifying a child and providing specially designed instruction are two different things.

I have had clients whose children attended a private school and were referred to their home district for evaluation.

Per Child Find, the home district usually provides the evaluations.

The outcome of the evaluations will determine your options and next steps. Yes, I have had private school clients evaluated by the home district. The home district (LEA) found the child eligible for special education.

The private school sat in the evaluation meeting and told us point blank: We do not provide that here. You’re going to have to go someplace else.

And then the parent had a choice to make. They chose a private school that provided special education but not IEPs or FAPE.

Is this the same as Scholarships and Vouchers for Private Schools?

As Pee Wee Herman said, “Let’s talk about your big but.”

Some of you think, ‘But my private school does do IEPs!’

Yes, some do. Some private schools have a specific mission to teach only kids with autism or dyslexia or whatever. However, they choose to do this, which is very different from having to.

The people who run that particular private school can wake up tomorrow and change the mission.

Public schools never, ever have this choice. They are bound to IDEA and must provide special education.

Some states have scholarship and voucher programs that allow you to take money and enroll your child in a special needs school. In most cases, you have to sign away FAPE to participate in these programs.

In other words, you’re putting all your faith and trust in the private school to provide what your child needs. And you have no recourse if your child does not receive FAPE.

Huge difference between choosing to provide a service and have to provide a service.

So we can receive Itinerant and Related Services at Private Schools?

Some states have other little nuances and exceptions. However, in most cases, what the child will receive from these programs and exceptions is far less than what they’d get via an IEP in their home school district.

IDEA is what guarantees our kids receive FAPE.

None of these state-specific provisions guarantee FAPE.

For example, a school district or the state may provide:

• Related Services such as speech therapy or counseling to homeschool and private school students
• They are often health-related rather than education-related, as pertains to being disabled.
• Usually, the district can require you to report to the local school building to receive said service or support.

Make no mistake, it is not at all the same as having an IEP and a right to FAPE.

A child can receive related services at a private school. But again, the private school can change their mind and rescind this, as they are under no obligation to provide FAPE.

What is PA Education Act 89?

Another but that I hear often is Act 89. Because I live in PA, I have a lot of readers in PA. So I hear, “But…Act 89!”

Act 89 does not state that you can receive special education at a private school.

And I am sorry that anyone led you to believe that. Here is what Act 89 says; you can read more here.

1. Act 89 programs, which are often described as providing services that are health-related, are legally distinct from special education programs. This BEC does not address the appropriate design of Act 89 programs. Act 89 services are funded through the intermediate unit (IU), and questions concerning Act 89 services should be directed to the IU. The school district is not responsible for Act 89 services. (And IUs are another weird PA thing.)
2. In special education programs, there is a difference between what a local education agency (LEA) such as a school district can do and what it must do. This memo pertains to the legal entitlements of the children involved and the obligations of the public educational system.
3. Under relevant special education law, the rights of children whose parents have placed them in a private school, notwithstanding the availability of a free appropriate public education (FAPE) from or through a school district,, are significantly less than the rights of a child for whom FAPE is not available in a public (or publicly funded) setting. The guidance that follows focuses primarily on the group of students whose parents have chosen to place them in a private school, although FAPE was available in the school district.

Summary of Act 89

If I read PA Act 89 and the state’s explanation of it, I think it is best summed up in this one paragraph.

Federal provisions do not confer specific entitlements on particular children who remain in private schools; rather, these provisions require local education agencies to provide some services to private school children in the aggregate.

This phrase, “a genuine opportunity for equitable participation” has never been interpreted to entitle a particular private school child to the full range of items that constitute FAPE, or any particular service, at the private site of the parent’s choice, when FAPE is available through simple enrollment in a public school.

Again, Act 89 is a PA thing, but many other states have similar acts and programs.

FAPE and Private Schools

The phrase in Act 89 sums it up nicely:

If FAPE is available through “simple enrollment in a public school,” then that’s where you have to go to get it.

What you choose to do is up to you. Please ensure you know your rights and the risks if you choose not to accept FAPE.