SPED: VI - Students with Disabilities in Other Settings

VI. STUDENTS WITH DISABILITIES IN OTHER SETTINGS

VI.A. PRIVATE SCHOOL PLACEMENTS BY LEAs (34 CFR § 300.325; Rules VI.A.)

Developing IEPs.
1. Before WSD places a student with a disability in, or refers a student to, a private school or facility, [DISTRICT] must initiate and conduct a meeting to develop an IEP for the student in accordance with Part B of the IDEA and the Rules.
2. WSD must ensure that a representative of the private school or facility attends the meeting. If the representative cannot attend, the LEA must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls or video conferencing.
Reviewing and revising IEPs.
1. After a student with a disability is placed in a private school or facility, any meetings to review and revise the student’s IEP may be initiated and conducted by the private school or facility at the discretion of WSD.
2. If the private school or facility initiates and conducts these meetings, WSD must ensure that the parent(s) or adult student and an LEA representative:
  1. Are involved in any decisions about the student’s IEP; and
  2. Agree to any proposed changes in the IEP before those changes are implemented.
Even if a private school or facility implements a student’s IEP, responsibility for compliance with this part remains with WSD and the USBE.
Residential placement (34 CFR § 300.104).

If placement in a public or private residential program is necessary to provide special education and related services to a student with a disability, the program, including non-medical care and room and board, must be at no cost to the parent(s) of the student or adult student.

VI.B. STUDENTS WITH DISABILITIES ENROLLED BY THEIR PARENT(S) IN PRIVATE SCHOOLS WHEN FAPE IS NOT AT ISSUE (UNILATERAL PLACEMENT) (34 CFR § 300.130; Rules VI.B.)

Parentally placed private school students with disabilities means students with disabilities enrolled by their parent(s) or an adult student in private, including religious, schools or facilities that meet the definition of elementary school or secondary school in Part B of the IDEA.

Definitions.
1. Elementary school means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law (34 CFR § 300.13).
2. Secondary school means a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12 (34 CFR § 300.36). Grades nine and above must be accredited, in accordance with USBE Rule.
Child find for parentally placed or adult student private school students with disabilities (34 CFR § 300.131).
1. WSD must locate, identify, and evaluate all students with disabilities who are enrolled by their parent(s), or adult students, in private (either for-profit or nonprofit), including religious, elementary schools and secondary schools located in the area served by WSD.
2. WSD’S child find process must be designed to ensure:
  1. The equitable participation of parentally placed or adult student nonprofit private school students; and
  2. An accurate count of those students in nonprofit private schools.
3. WSD must undertake activities similar to the activities undertaken for WSD’s public school students.
4. The cost of carrying out the child find requirements in this section, including individual evaluations, may not be considered in determining if WSD has met its obligation under spending a proportionate share of funds under Part B of the IDEA to provide services to parentally placed or adult student nonprofit private school students.
5. The child find process must be completed in a time period comparable to that for students attending public schools in WSD.
6. If private (for-profit and nonprofit), including religious, elementary schools and secondary schools are located in WSD, WSD must, in carrying out the child find requirements in this section, include parentally placed or adult student private school students who reside in a state other than the state in which the private schools that they attend are located.
Basic requirements for provision of services for parentally placed or adult student nonprofit private school students with disabilities (34 CFR § 300.132).
1. To the extent consistent with the number and location of students with disabilities who are enrolled by their parent(s), or an adult student, in nonprofit private, including religious, elementary schools and secondary schools located in the area served by WSD, provision is made for the participation of those students in the program assisted or carried out under Part B of the IDEA by providing them with special education and related services, including direct services.
2. WSD must develop and implement a services plan for each nonprofit private school student with a disability who has been designated by WSD in which the private school is located to receive special education and related services.
3. WSD must maintain in its records, and provide to the USBE staff annually, the following information related to parentally placed or adult student nonprofit private school students, including that required under Rules II.A.(4)(c):
  1. The number of students evaluated and reevaluated within three years;
  2. The number of students determined to be students with disabilities; and
  3. The number of students served.
Expenditures (34 CFR § 300.133).
1. WSD must spend the following on providing special education and related services (including direct services) to parentally placed or adult student nonprofit private school students with disabilities:
  1. For students ages 3 through 21, an amount that is the same proportion of the WSD's total subgrant under Section 611(f) of Part B of the IDEA as the number of private school students with disabilities ages 3 through 21 who are enrolled by their parent(s), or an adult student, in nonprofit private, including religious, elementary schools and secondary schools located in WSD, is to the total number of students with disabilities in its jurisdiction ages 3 through 21.
  2. For students ages three through five, an amount that is the same proportion of WSD's total subgrant under Section 619(g) of the Part B of the IDEA as the number of parentally placed private school students with disabilities ages three through five who are enrolled by their parent(s) in nonprofit private, including religious, elementary schools located in WSD, is to the total number of students with disabilities in WSD ages three through five.
    1. Students ages three through five are considered to be parentally placed private school students with disabilities enrolled by their parent(s) in nonprofit private, including religious, elementary schools, if they are enrolled in a private preschool that is part of a private elementary school.
  3. If WSD has not expended for equitable services all of the required funds by the end of the fiscal year for which Congress appropriated the funds, WSD must obligate the remaining funds for special education and related services (including direct services) to parentally placed or adult student nonprofit private school students with disabilities during a carryover period of one additional year.
2. In calculating the proportionate amount of Federal funds to be provided for parentally placed or adult student nonprofit private school students with disabilities, WSD, after timely and meaningful consultation with representatives of private schools, must conduct a thorough and complete child find process to determine the number of parentally placed, or adult student, students with disabilities attending nonprofit private schools located in WSD.
3. Annual count of the number of parentally placed or adult student private school students with disabilities.
  1. WSD must:
    1. After timely and meaningful consultation with representatives of parentally placed or adult student private school students with disabilities, determine the number of parentally placed or adult student private school students with disabilities attending nonprofit private schools located in WSD; and
    2. Ensure that the count is conducted on any date between October 1 and December 1, inclusive, of each year.
  2. The count must be used to determine the amount that WSD must spend on providing special education and related services to parentally placed or adult student nonprofit private school students with disabilities in the next subsequent fiscal year.
4. State and local funds may supplement and in no case supplant the proportionate amount of Federal funds required to be expended for parentally placed adult student private school students with disabilities.
Consultation (34 CFR § 300.134).

To ensure timely and meaningful consultation, WSD must consult with nonprofit private school representatives and representatives of parent(s) of parentally placed or adult student private school students with disabilities during the design and development of special education and related services for the students regarding the following:
1. The child find process, including:
  1. How parentally placed or adult student nonprofit private school students suspected of having a disability can participate equitably; and
  2. How the parent(s) or adult student, teachers, and nonprofit private school officials will be informed of the process.
2. The determination of the proportionate share of Federal funds available to serve parentally or adult student placed nonprofit private school students with disabilities, including the determination of how the proportionate share of those funds was calculated.
3. The consultation process among WSD, nonprofit private school officials, and representatives of parent(s), or the adult student, of parentally placed or adult student private school students with disabilities, including how the process will operate throughout the school year to ensure that parentally placed, or adult student, students with disabilities identified through the child find process can meaningfully participate in special education and related services.
4. How, where, and by whom special education and related services will be provided for parentally placed or adult student nonprofit private school students with disabilities, including a discussion of:
  1. The types of services, including direct services and alternate service delivery mechanisms; and
  2. How special education and related services will be apportioned if funds are insufficient to serve all parentally placed or adult student private school students; and
  3. How and when those decisions will be made;
5. How, if WSD disagrees with the views of the nonprofit private school officials on the provision of services or the types of services (whether provided directly or through a contract), WSD will provide to the nonprofit private school officials a written explanation of the reasons why the school district chose not to provide services directly or through a contract.
Written affirmation (34 CFR § 300.135).
1. When timely and meaningful consultation has occurred, WSD must obtain a written affirmation signed by the representatives of participating nonprofit private schools.
2. If the representatives do not provide the affirmation within a reasonable period of time, WSD must forward the documentation of the consultation process to the State Director of Special Education.
Compliance (34 CFR § 300.136).
1. A nonprofit private school official has the right to submit a complaint to the State Director of Special Education that WSD:
  1. Did not engage in consultation that was meaningful and timely; or
  2. Did not give due consideration to the views of the nonprofit private school official.
2. Procedure.
  1. If the nonprofit private school official wishes to submit a complaint, the official must provide to the State Director of Special Education the basis of the noncompliance by WSD with the applicable nonprofit private school provisions in this part; and
  2. WSD must forward the appropriate documentation to the State Director of Special Education.
  3. If the nonprofit private school official is dissatisfied with the decision of the State Director of Special Education, the official may submit a complaint to the Secretary by providing the information on noncompliance described above; and the State Director of Special Education must forward the appropriate documentation to the Secretary.
Equitable services determined (34 CFR § 300.137).
1. No parentally placed or adult student nonprofit private school student with a disability has an individual right to receive some or all of the special education and related services that the student would receive if enrolled in a public school.
2. Decisions about the services that will be provided to parentally placed or adult student nonprofit private school students with disabilities by WSD must be made in accordance with the consultation and proportionate share requirements.
3. WSD must make the final decisions with respect to the services to be provided to eligible parentally placed or adult student nonprofit private school students with disabilities.
4. If a student with a disability is enrolled in a nonprofit religious or other private school by the student’s parent(s) or adult student and will receive special education or related services from WSD, WSD must:
  1. Initiate and conduct meetings to develop, review, and revise a services plan for the student; and
  2. Ensure that a representative of the religious or other nonprofit private school attends each meeting. If the representative cannot attend, WSD shall use other methods to ensure participation by the religious or other nonprofit private school, including individual or conference telephone calls.
Equitable services provided (34 CFR § 300.138).
1. The services provided to parentally placed or adult student nonprofit private school students with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally placed or adult student private school students with disabilities do not have to meet the USBE and IDEA special education teacher requirements.
2. Parentally placed or adult student nonprofit private school students with disabilities may receive a different amount of services than students with disabilities in public schools.
3. Services provided in accordance with a services plan.
  1. Each parentally placed or adult student nonprofit private school student with a disability who has been designated to receive services must have a services plan that describes the specific special education and related services that WSD will provide to the student in light of the services that WSD has determined it will make available to parentally placed or adult student nonprofit private school students with disabilities.
  2. The services plan must, to the extent appropriate:
    1. Meet the same content requirements as the IEP, including access and progress in the general curriculum, or for a student aged three through five, including access and progress in age-appropriate activities, with respect to the services provided; and
    2. Be developed, reviewed, and revised consistent with the IEP provisions in Rule III.I.
4. Provision of equitable services.
  1. Services must be provided:
    1. By employees of WSD; or
    2. Through contract by the school district with an individual, association, agency, organization, or other entity.
  2. Special education and related services provided to parentally placed or adult student nonprofit private school students with disabilities, including materials and equipment, must be secular, neutral, and non-ideological.
Location of services and transportation (34 CFR § 300.139).
1. Services to parentally placed or adult student nonprofit private school students with disabilities may be provided on the premises of private, including religious, schools, to the extent consistent with law.
2. Transportation.
  1. If necessary for the student to benefit from or participate in the services provided under this part, a parentally or adult student placed nonprofit private school student with a disability must be provided transportation:
    1. From the student’s school or the student’s home to a site other than the private school; and
    2. From the service site to the private school, or to the student’s home, depending on the timing of the services.
  2. School districts are not required to provide transportation from the student’s home to the private school.
  3. The cost of the transportation may be included in calculating whether the school district has met the requirements for proportionate share spending.
Due process complaints and State complaints (34 CFR § 300.140).
1. Due process not applicable, except for child find.
  1. Except as provided in Rule VI.B.11.b, the procedures for State complaints and due process hearing requests do not apply to complaints that a school district has failed to meet the requirements of Part B of the IDEA and Rules, including the provision of services indicated on the student’s services plan.
2. Child find complaints to be filed with the school district in which the private school is located.
  1. The procedures for State complaints and due process hearing requests apply to complaints that a school district has failed to meet the child find requirements in Part B of the IDEA and Rules.
  2. Any due process complaint regarding the child-find requirements as described in Rule VI.B.11.b.(1) must be filed with the school district in which the private school is located, and a copy must be forwarded to the State Director of Special Education.
State complaints.
1. Any complaint that a school district has failed to meet the requirements for provision of services, expenditures, consultation, written affirmation, determination of equitable services, location of services, due process and State complaints, funds not to benefit a private school, use of personnel, separate classes prohibited, and use of property, equipment, and supplies must be filed in accordance with the State complaint procedures described in Rule IV.G.
2. A complaint filed by a nonprofit private school official under the meaningful and timely consultation, or due consideration to views of private school official requirements, must be filed with the State Director of Special Education in accordance with the procedures in Rule VI.B.7.b.
Requirement that funds not benefit a private school (34 CFR § 300.141).
1. An LEA may not use funds provided under Section 611 or 619 of the IDEA to finance the existing level of instruction in a private school or to otherwise benefit the private school.
2. The school district must use funds provided under Part B of the IDEA to meet the special education and related services needs of parentally or adult student placed private school students with disabilities, but not for meeting:
  1. The needs of a private school; or
  2. The general needs of the students enrolled in the private school.
Use of personnel (34 CFR § 300.142).
1. A school district may use funds available under sections 611 and 619 of the IDEA to make public school personnel available in other than public facilities:
  1. To the extent necessary to provide services contained in service plans for parentally placed or adult student private school students with disabilities; and
  2. If those services are not normally provided by the private school.
2. A school district may use funds available under sections 611 and 619 of the IDEA to pay for the services of an employee of a private school to provide services contained in service plans for parentally placed or adult student private school students with disabilities if:
  1. The employee performs the services outside of his/her regular hours of duty; and
  2. The employee performs the services under public supervision and control.
Separate classes prohibited (34 CFR § 300.143).

An LEA may not use funds available under Section 611 or 619 of the IDEA for classes that are organized separately on the basis of school enrollment or religion of the students if:
1. The classes are at the same site; and
2. The classes include students enrolled in public schools and students enrolled in private schools.
Property, equipment, and supplies (34 CFR § 300.144).

1. A school district must control and administer the funds used to provide special education and related services, and hold title to and administer materials, equipment, and property purchased with those funds for the uses and purposes provided in the IDEA.
2. The school district may place equipment and supplies in a private school for the period of time needed for the Part B program.
3. The school district must ensure that the equipment and supplies placed in a private school:
  1. Are used only for Part B purposes; and
  2. Can be removed from the private school without remodeling the private school facility.
4. The school district must remove equipment and supplies from a private school if:
  1. The equipment and supplies are no longer needed for Part B purposes; or
  2. Removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes.
5. No funds under Part B of the IDEA may be used for repairs, minor remodeling, or construction of private school facilities.

VI.C. STUDENTS WITH DISABILITIES ENROLLED BY THEIR PARENT(S) IN PRIVATE SCHOOLS WHEN FAPE IS AT ISSUE (34 CFR § 300.148; Rules VI.C.)

WSD is not required to pay for the cost of education, including special education and related services, of a student with a disability at a private school or facility if that LEA made a FAPE available to the student and the parent(s) or adult student elected to place the student in a private school or facility. However, WSD must include that student in the population whose needs are addressed consistent with the Rules VI.B. (District responsibilities include, but are not limited to child find, expenditures of school district special education funds, consultation with private school representatives during the design and development of special education and related services and written affirmations of the same, provision of services within a services plan, and many other nuanced responsibilities.)
Disagreements between the parent(s) or adult student and an LEA regarding the availability of a program appropriate for the student, and the question of financial reimbursement, are subject to the State complaint and due process procedures in the Rules IV.G.–R.
If the parent(s) of a student with a disability or adult student, who previously received special education and related services under the authority of WSD, enroll the student in a private preschool, elementary school, or secondary school without the consent of or referral by the LEA, a court or a hearing officer may require the LEA to reimburse the parent(s) or adult student for the cost of that enrollment if the court or hearing officer finds that the LEA had not made a FAPE available to the student in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the USBE and LEAs.
The cost of reimbursement may be reduced or denied if:
1. At the most recent IEP Team meeting that the parent(s) or adult student attended prior to removal of the student from the public school, the parent(s) or adult student did not inform the IEP Team that they were rejecting the placement proposed by the LEA to provide a FAPE to the student, including stating their concerns and their intent to enroll their student in a private school at public expense; or
2. At least ten business days (including any holidays that occur on a business day) prior to the removal of the student from the public school, the parent(s) or adult student did not give written notice to the LEA of the information described in the Rules VI.C.4.a;
3. Prior to the parent’s(s’) or adult student’s removal of the student from the public school, the LEA informed the parent(s) or adult student, through the prior written notice requirements, of its intent to evaluate the student (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parent(s) or adult student did not make the student available for the evaluation; or
4. Upon a judicial finding of unreasonableness with respect to actions taken by the parent(s) or adult student.
Notwithstanding the requirements for the parent(s) or adult student to provide notice to WSD prior to removal of the student, the cost of reimbursement:
1. Must not be reduced or denied for failure to provide the notice if:
  1. The school prevented the parent(s) or adult student from providing the notice;
  2. The parent(s) or adult student had not received prior written notice of the notice requirement in Rules VI.C.4.a–c; or
  3. Compliance with the notice requirements in Rules VI.C.4.a.–c. would likely result in physical harm to the student; and
2. May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if:
  1. The parent(s) or adult student are not literate or cannot write in English; or
  2. Compliance with Rule VI.C.4.a.–c. would likely result in serious emotional harm to the student.

VI.D. STUDENTS WITH DISABILITIES ENROLLED IN HOME SCHOOL. (Rules VI.D.)

WSD is responsible for location, identification, and evaluation for eligibility for home schooled students in its boundaries.
A home-schooled student shall meet the eligibility criteria for students with disabilities in conformity with the Rules II.C.–H., including proper documentation, using comparable procedures to those required for identifying an eligible public-school student.
If a parent of a student or adult student who is home schooled or placed in a private school by the parent(s) at their own expense does not provide consent for the initial evaluation or the reevaluation, or the parent or adult student fails to respond to a request to provide consent (34 CFR § 300.300):
1. WSD may not use the dispute resolution procedures provided in the procedural safeguards, including mediation or due process procedures; and
2. WSD is not required to consider the student as eligible for services.
Students enrolled in home school full time.

No student with a disability who is home schooled full time has an individual right to receive any of the special education and related services that the student would receive if enrolled in a public school.
WSD must make the final decision with respect to the services, if any, to be provided to eligible home-schooled students with disabilities.
WSD may develop a services plan for home schooled students with disabilities who are eligible for special education and related services under Part B of the IDEA and these Rules. The services plan shall describe the special education and related services, if any, that the LEA will provide to the student, and must, to the extent appropriate:
1. Meet the IEP content requirements with respect to the services provided; and
2. Be developed, reviewed, and revised consistent with the IEP provisions in Rules III.I.
WSD shall determine where and when any services specified in the services plan will be provided.
Dual enrollment (R277-438 and UCA 53G-6-702).
1. A student with a disability who is simultaneously enrolled in both home school or private school and a public school is considered a dual enrollment student.
2. A student with a disability seeking dual enrollment is entitled to special education and related services, under an IEP, for the time, or for the number of courses, the student is enrolled in the public school, based on the decision of the student's IEP Team. The IEP Team must consider the amount of time and courses needed for the provision of FAPE.
Home schools do not meet the definition of private schools (R277-438).

VI.E. STUDENTS WITH DISABILITIES ENROLLED IN ADULT EDUCATION (Rules VI.E.)

Students with disabilities enrolled in Adult Education remain entitled to special education and related services until determined no longer meeting eligibility criteria, graduate with a regular high school diploma, or reach maximum age (i.e., age 22).
The responsibility for FAPE for students with disabilities enrolled in Adult Education classes remains with the school district of residence

VI.F. STUDENTS WITH DISABILITIES ENROLLED IN VIRTUAL SETTINGS (Rules VI.F.)

Students with disabilities enrolled in public education virtual settings remain entitled to special education and related services until determined no longer meeting eligibility criteria, graduate with a regular high school diploma, or reach maximum age.
The responsibility for FAPE for students with disabilities enrolled in public education virtual settings remains with the LEA of enrollment, unless Board Rule specifies otherwise.

VI.G. STUDENTS WITH DISABILITIES CONVICTED AS ADULTS AND INCARCERATED IN ADULT PRISONS (34C CFR § 300.324; Rules VI.J.)

The obligation to make FAPE available, including special education and related services under Part B of the IDEA and these Rules, to all students with disabilities applies to students ages 18 through 21 who are incarcerated in adult prisons, with the following exceptions:
1. The requirements relating to participation of students with disabilities in State- and district-wide assessments.
2. The requirements in 34 CFR § 300.320(b) relating to transition planning and transition services with respect to students whose eligibility under Part B of the IDEA will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.
The IEP Team of a student with a disability who is convicted as an adult under State law and incarcerated in an adult prison may modify the student's IEP or placement if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated. The IEP and LRE requirements do not apply with respect to such modifications.
Custodial status alone does not qualify an individual for services under the IDEA (R277-709-5(2)).
Responsibility for the provision of FAPE resides with the school district in which the prison facility is located.

VI.H. STUDENTS WITH DISABILITIES WHO ARE ALSO IN STATE CUSTODY/CARE (UCA 62A-4a-701; R277-709; Rules VI.K.)

The obligation to make FAPE available in the LRE, including special education and related services under Part B of the IDEA and these Rules, applies to all students with disabilities in state custody/care.
All requirements of these Rules apply to students with disabilities in State custody/care, including child find, LRE, and continuum of alternative placements.
Special education programs provided through youth in custody programs shall be monitored, through regular site monitoring visits and monthly desk monitoring on an annual basis, as directed by USBE (R277-709).
The USBE will develop and implement a Memorandum of Understanding (MOU) with other State agencies responsible for placing students in State custody/care across LEAs or in private facilities. The MOU will address, at a minimum, payment for education and special education services, timelines for placement, and notification of LEAs of changes in placement, and assign responsibility for FAPE.
LEAs must develop and implement a Memorandum of Understanding (MOU), policies, and procedures to address the process and timelines for interstate and intrastate transfers of students with disabilities in State custody/care, including the transfer of special education files, including the IEP, and the implementation of the IEP and provision of FAPE in the LRE, even in temporary placements.
1. The LEA transferring the records must keep a copy of the records for three years after the transfer.

VI.I. STUDENTS WITH DISABILITIES WHO RESIDE IN NURSING HOMES (Rules VI.L)

Students with disabilities residing in nursing homes and their parent(s) or adult students have the same rights under IDEA as all other IDEA-eligible students with disabilities.

Created on 18 November 2022.
Last updated on 18 November 2022.
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