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

Responsibility of SEA (Sec. 300.146)

Comment: Many commenters disagreed with the exception to the "highly qualified teacher" requirements in paragraph (b) of this section and stated that the "highly qualified teacher" requirements should apply to private school teachers of children with disabilities placed or referred by public agencies. Several commenters stated that these children are likely to have more severe disabilities and, therefore, have a greater need for highly qualified teachers than children served in public schools.

Several commenters stated that exempting teachers in private schools from the requirement to be "highly qualified" in situations where children with disabilities are publicly-placed in order to receive FAPE is not consistent with the requirement that the education provided to children in such settings meet the standards that apply to children served by public agencies, or with the ESEA and the goal in the Act of helping all children with disabilities achieve high standards.

A few commenters supported the exception to "highly qualified teacher" requirements. One commenter stated that States should make their own decisions in this area in light of resource constraints.

One commenter opposed the expenditure of public school funds for the education of publicly-placed private school children by teachers who do not meet the "highly qualified" requirements.

Discussion: Section 602(10) of the Act states that "highly qualified" has the meaning given the term in section 9101 of the ESEA, which clarifies that the requirements regarding highly qualified teachers apply to public school teachers and not teachers teaching as employees of private elementary schools and secondary schools. As we stated in the Analysis of Comments and Changes section regarding Sec. 300.138 in this subpart and Sec. 300.18 in subpart A, it is the Department's position that the highly qualified 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. We agree with the commenters that, in many instances, a public agency may choose to place a child with a severe disability and with more intensive educational needs in a private school or facility as a means of providing FAPE. When the public agency chooses to place a child with a significant disability, or any child with a disability, in a private school as a means of providing FAPE, the public agency has an obligation to ensure that the child receives FAPE to the same extent the child would if placed in a public school, irrespective of whether the private school teachers meet the highly qualified teacher requirements in Sec. Sec. 300.18 and 300.156(c). FAPE includes not just the special education and related services that a child with a disability receives, but also includes an appropriate preschool, elementary and secondary school education in the State involved. The required special education and related services must be provided at public expense, at no cost to the parent, in accordance with an IEP, and the education provided to the child must meet the standards that apply to educational services provided by the SEA and LEA (except for the highly qualified teacher requirements in Sec. Sec. 300.18 and 300.156(c)). In addition, the SEA must ensure that the child has all the rights of a child with a disability who is served by a public agency.

We do not agree with the premise of the commenters that not requiring private school teachers who provide services to publicly-placed children with disabilities to meet the highly qualified teacher requirements means that the education provided to these children in the private school setting does not meet the standards that apply to children with disabilities served by the public agency. States have flexibility in developing standards that meet the requirements of the Act. The standards that SEAs apply to private schools that contract with public agencies to provide FAPE to children with disabilities, are, so long as they meet the requirements of Part B of the Act and its regulations, a State matter. Federal law does not encourage or prohibit the imposition of additional requirements as a condition of placing these children in the private school.

With regard to the comment opposing the use of public school funds for the education of publicly-placed private school children by teachers who do not meet the highly qualified teacher requirements, a State or public agency may use whatever State, local, Federal, and private sources of support that are available in the State to meet the requirements of the Act. We believe restricting the use of public school funds as requested by the commenter would not only be inconsistent with the Act, but also may unnecessarily limit a public agency's options for providing FAPE to its publicly-placed children with disabilities.

Changes: None.

Comment: A few commenters recommended requiring States to have rules, regulations, and contracts requiring private schools that accept publicly-placed children with disabilities to guarantee that children with disabilities receive FAPE and their parents retain all of the protections mandated for public schools, including the right to pendency placements if the parents challenge the decisions of the private school to terminate the children's placements. One commenter recommended that the regulations clarify that private schools serving children placed by a public agency are not exempt from the obligation to provide FAPE.

Discussion: The Act does not give States and other public agencies regulatory authority over private schools and does not place requirements on private schools. The Act imposes requirements on States and public agencies that refer to or place children with disabilities in private schools for the purposes of providing FAPE to those children because the public agency is unable to provide FAPE in a public school or program. The licensing and regulation of private schools are matters of State law. The Act requires States and public agencies, including LEAs, to ensure that FAPE is made available to all children with disabilities residing in the State in mandatory age ranges, and that the rights and protections of the Act are extended to eligible children and their parents. If the State or public agency has placed children with disabilities in private schools for purposes of providing FAPE to those children, the State and the public agency must ensure that these children receive the required special education and related services at public expense, at no cost to the parents, in accordance with each child's IEP. It is the responsibility of the public agency to determine whether a particular private school in which the child with a disability will be placed for purposes of providing FAPE meets the standards that apply to the SEA and LEA and that a child placed by a public agency be afforded all the rights, including FAPE, that the child would otherwise have if served by the public agency directly.

Changes: None.

Comment: One commenter stated that, in cases where the public agency places a child in a private school or residential treatment facility for the purposes of providing FAPE, the public agency should be required to determine and inform the private school or residential treatment facility about the person or persons who have the legal authority to make educational decisions for the child.

Discussion: The change requested by the commenter is not needed because the public agency, not the private agency, is responsible for providing FAPE to a child who is placed by the public agency in a private school. Consistent with Sec. 300.146 and section 612(a)(10)(B) of the Act, a public agency that places a child with a disability in a private school or facility as a means of carrying out the requirements of Part B of the Act, must ensure that the child has all the rights of a child with a disability who is served by a public agency, which includes ensuring that the consent requirements in Sec. 300.300 and sections 614(a)(1)(D) and 614(c) of the Act are followed. A public agency must, therefore, secure the needed consent from the person or persons who have the legal authority to make such decisions, unless the public agency has made other arrangements with the private school or facility to secure that consent. We do not believe it is necessary or appropriate to require the public agency to inform the private school or facility of the persons or persons who have the legal authority to make educational decisions for the child because this will depend on the specific arrangements made by the public agency with a private school or facility and, should, therefore, be determined by the public agency on a case by case basis.

Changes: None.

Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE is at Issue