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Do Private Schools have to provide IEPs or Special Education?

Private Schools and IEPs

This topic makes me sad. Because it’s so super deflating for parents. Many times, attending a private school is a tradition for families. Then, they have a child who requires an IEP. That brings on their private school reality check, as far as private schools and IEPs and special education.

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So 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.

Private Schools are not bound to IDEA.

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…)

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 so 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? They don’t.

Private Schools have to follow ADA/504.

And even this is a “sort of.” If a child’s needs can be reasonably accommodated, and it’s only accommodations, the private school must follow ADA and 504.

Who is the LEA?

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.

Child Find and Private Schools

I have previously done a blog post explaining what is Child Find. 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 were attending a private school, and then were referred to their home district for evaluations. Per Child Find, they provide the evaluations.

Scholarships and Vouchers for Private Schools.

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

I know some of you are thinking, ‘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 have 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 (thanks Betsy!) 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.

Other Exceptions to IEPs at Private Schools

Pennsylvania (my home state) is one that has a lot of weird little nuances about Special Education. One of them is our APS system. APS stands for Approved Private School. It is an official designation from the state department of education. Other states have similar programs.

Basically it goes like this. A private school provides a particular service or function, as far as special education. They get approval from the state to be on a special list.

When a school district in a given geographical area is unable to provide what a child needs, they then look to APSs in their area. For example, we have Schools for the Blind, all over the state. Most of them are APSs. My son attends an APS.

These particular schools are bound to IDEA and the child’s home district still acts as the LEA. However, a Board of Directors can wake up tomorrow and decide that they do not want to be an APS any more. As long as they are an APS, they must provide FAPE.

Itinerant and Related Services for 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
  • 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.

PA Education Act 89

Another but, that I hear often. And 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. Bold is mine.

  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.

FAPE and Private Schools

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

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