Private Schools and Students with Special Needs
Although students with disabilities are entitled by law (Individuals with Disabilities Education Act, or IDEA) to a free appropriate public education (FAPE), some students who qualify for Special Education will instead attend private school. This may happen for a variety of reasons.
This guide will help families understand:
How their rights may differ in private school from public school, and
How to make the best choice for their child.
Why the Student with a Disability is Attending Private School
For this discussion, there are basically three categories of situations in which a student with a disability may attend private school. It is important for parents to understand the different categories because it may determine who pays for the private school education and what the student’s rights are.
In the first category, the student’s public school district can provide the student with a FAPE, but the family simply prefers the private school. An example of this is where the family has sent other children to a parochial school and they want their child with a disability to have the same experience. Families in this category are typically responsible for paying for the cost of the private education, although the student may qualify for one of Ohio’s scholarship programs.
In the second category, the parents do not believe the public school is providing their child with a FAPE and believe the private school will provide a better special education. In this situation if the family seeks payment for the private school education from the public school district this is called a “unilateral parental placement.” To be successful in getting the public school district to pay for the private school education, parents must give the public school district written notice that they intend to move their child and must prove in a due process hearing that the district failed to provide a FAPE. The Ohio Department of Education’s Guide to Parent Rights in Special Education explains how the funding determination is made (see page 32).
In the final category, the public school district and the IEP Team determine that the public school is not able to provide the student with a FAPE and that a private school placement is appropriate. When the IEP Team recommends an “out of district placement,” the public school district will be responsible for paying for the private school education and ensuring that the IEP services are provided.
Rights and School District Responsibilities
Students with disabilities who attend private schools because their parents elected to place them there do not have the same rights as students with disabilities who attend public school. The main difference is that private school students do not have individual rights to get the same special education and related services that they would get in a public school. Public school districts are however responsible for allocating a proportionate amount of their federal IDEA funding to provide “equitable services” to the group of students in their district who attend private school. This means that some private school students may receive services and others may not. Those private school students who do receive services will typically receive fewer services than they would have in public school.
Parents should take the time to understand exactly what the public school district responsibilities are so that they have reasonable expectations. The following sites can help parents understand what public school districts are required to provide to parentally placed private school students.
Students who attend private schools because the IEP Team determined that the private school is the appropriate placement for the student to receive a FAPE will have the same rights as public school students and the school district will have the same responsibilities that it would have to public school students.
In Ohio, students with disabilities who elect to attend private schools may be eligible for financial assistance from the state in the form of a scholarship. The State of Ohio has several scholarship programs that can be used to attend private school. Some of the scholarships are available to both general education and special education students who meet certain criteria.
Additionally, there are two scholarship programs: the Autism Scholarship Program and the Jon Peterson Special Needs Scholarship Program that are only available to students with disabilities who qualify for special education. The Ohio Department of Education provides information on their website about all scholarship programs.
Families interested in the scholarship programs are encouraged to review all the programs for which their child may be eligible before applying. Although both the Autism and Jon Peterson Scholarships offer higher annual dollars than general scholarship programs, there are some situations and some special needs students who may benefit more from one of the general scholarship programs. A student may only receive one type of scholarship at a time.
IEP Team Placement
If a student attends private school because the IEP Team determines that the private school is the appropriate placement for the student to receive a FAPE, the cost of attending the private school will be paid by the public school district. In these cases the family does not need a scholarship.
Are Private Schools Bound by IDEA?
The short answer is no. IDEA only applies to public schools. Private schools are however bound by Section 504 of the Rehabilitation Act of 1973 and therefore cannot discriminate against a child with a disability for reasons related to the disability. Private schools may be required to provide certain modifications and accommodations to allow a student with a disability to access educational opportunities.
In a case where the student has been placed in a private school because the IEP Team has determined that the private school is the appropriate placement for the student to receive a FAPE, the public school district retains the responsibility for making sure that the private school implements the IEP and the student receives all the appropriate services. In this case, the private school is operating as an extension of the public school and IDEA applies.
IEP vs. Service Plan
If a student with a disability attends private school they will not have an IEP but may instead have a Service Plan. This is sometimes called an Individual Service Plan or Instructional Service Plan (both known as ISP). While a Service Plan may resemble an IEP, there are important differences.
A Service Plan will generally provide fewer services to a student than an IEP in a public school setting.
The Service Plan will typically be developed for the student jointly by the public school district and the private school.
Some of the services may be provided by the private school directly and some by the public school district.
A good overview of the major differences between an IEP and a Service Plan is provided by Understood.
This guide was developed as part of a project made possible by a Grant from the Ohio State Bar Foundation. The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.
Lead researcher/author: Helen Livingston Rapp, Esq., RedTreehouse.org Legal Intern