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U.S. Department of Education: Promoting Educational Excellence for all Americans

Equitable services provided (Sec. 300.138)

Comment: Several commenters requested clarifying whether the requirement in Sec. 300.138(a) that services provided to parentally-placed private school children with disabilities be provided by personnel meeting the same standards (i.e., highly qualified teacher requirements) as personnel providing services in the public schools applies to private school teachers who are contracted by the LEA to provide equitable services.

Discussion: As discussed in the Analysis of Comments and Changes section, in the response to comments on Sec. 300.18, it is the Department's position that the highly qualified special education teacher requirements do not apply to teachers hired by private elementary schools and secondary schools. This includes teachers hired by private elementary schools and secondary schools who teach children with disabilities. Further, it is the Department's position that the highly qualified special education teacher requirements also do not apply to private school teachers who provide equitable services to parentally-placed private school children with disabilities. In addition to the revision we are making to new Sec. 300.18(h) (proposed Sec. 300.18(g)) to make this position clear, we also will revise Sec. 300.138(a)(1) to clarify that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements.

Changes: We have revised Sec. 300.138(a)(1) as indicated.

Comment: A few commenters requested clarifying the process for developing a services plan and explaining how a services plan differs from an IEP.

Discussion: We do not believe that additional explanation in the regulation is needed. Under Sec. 300.138(b), each parentally-placed private school child with a disability who has been designated by the LEA in which the private school is located to receive special education or related services must have a services plan. The services plan must describe the specific special education and related services offered to a parentally-placed private school child with a disability designated to receive services. The services plan also must, to the extent appropriate, meet the IEP content, development, review, and revision requirements described in section 614(d) of the Act, or, when appropriate, for children aged three through five, the IFSP requirements described in section 636(d) of the Act as to the services that are to be provided. The LEA must ensure that a representative of the private school attends each meeting to develop the services plan and if the representative cannot attend, use other methods to ensure participation by the private school, including individual or conference telephone calls.

Children with disabilities enrolled in public schools or who are publicly-placed in private schools are entitled to FAPE and must receive the full range of services under Part B of the Act that are determined by the child's IEP Team to be necessary to meet the child's individual needs and provide FAPE. The IEPs for these children generally will be more comprehensive than the more limited services plans developed for parentally-placed private school children with disabilities designated to receive services.

Changes: None.

Comment: A few commenters recommended revising the definition of services plan to clarify that an IEP could serve as the services plan; otherwise, States that provide IEP services to parentally-placed private school children with disabilities would be required to develop a services plan and an IEP.

Discussion: We do not believe it is appropriate to clarify in the regulations that the IEP can serve as the services plan because, as stated elsewhere in this preamble, a services plan should only describe the specific special education and related services offered to a parentally-placed private school child with a disability designated to receive services. We believe that using an IEP in lieu of a services plan for these children may not be appropriate in light of the fact that an IEP developed pursuant to section 614(d) of the Act will generally include much more than just those services that a parentally-placed private school child with a disability may receive, if designated to receive services. There is nothing, however, in these regulations that would prevent a State that provides more services to parentally-placed private school children with disabilities than they are required to do under the Act to use an IEP in place of a services plan, consistent with State law.

Changes: None.