Equitable Services for Students with Disabilities

Equitable Services for Parentally-Placed Private School Children with Disabilities

The Individuals with Disabilities Education Acts (IDEAs) equitable services provisions are found in the Code of Federal Regulations (CFR) at 34 CFR §§ 300.130 through 300.144 . The U.S. Department of Education's commentary on the regulations is found at Volume 71, Federal Register, No. 156, August 14, 2006, pp. 46589 through 46597 (PDF). The U.S. Department of Education's “Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools, Office of Special Education Programs (OSEP) Questions and Answers (QA) 22-10, Revised February 2022,” is available on the U.S. Department of Education's, IDEA website .

Some key provisions of the equitable services regulations are summarized below.

Which Students are Eligible for Equitable Services?

The equitable services provisions apply to parentally-placed private school children with disabilities, which means children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school or secondary school.1 (The equitable services provisions do not apply to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.)2

Preschool Students

If a private preschool meets the definition of elementary school, the equitable services provisions apply to students with disabilities age 3 to 5 who are enrolled by their parents in the private preschool.3 On the other hand, if a student with a disability age 3 to 5 is enrolled by their parents in a private preschool that does not meet the definition of elementary school, the equitable services provisions do not apply.4

The federal regulations define “Elementary school” as “a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law.”5 While California law does not have a uniform definition of elementary school, California’s Education Code indicates that kindergarten (including transitional kindergarten or TK) is considered elementary education.6

Therefore, it appears that in California the equitable services provisions apply to a student with a disability age 3 to 5 enrolled by their parents in a private school that offers not only preschool but also any of the grades TK or above. On the other hand, it appears that in California the equitable services provisions do not apply to a student with a disability age 3 to 5 enrolled by their parents in a “stand-alone” private preschool.

Home School Students

The equitable services provisions apply to home-schooled children in a state that recognizes home schools as private elementary schools and secondary schools.7 Because California does recognize home schools as private elementary schools and secondary schools,8 children with disabilities in such home schools must be treated in the same way as other parentally-placed private school children with disabilities.

Child Find

Each local educational agency (LEA) must locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA.9 In doing so, the LEA must undertake activities similar to those undertaken for the LEA’s public school children.10

Provision of Services

To the extent consistent with the number and location of children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, provision must be made for the participation of those children 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.11 No parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.12 A services plan must be developed and implemented for each private school child with a disability who has been designated by the LEA in which the private school is located to receive special education and related services.13 Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools.14 Services must be provided by employees of a public agency or through contract by the public agency with an individual, association, agency, organization, or other entity.15 Services to parentally-placed private school children with disabilities may be provided on the premises of private, including religious, schools, to the extent consistent with law.16

Consultation

The LEA must engage in timely and meaningful consultation with private school representatives and representatives of parents of parentally-placed private school children with disabilities during the design and development of special education and related services for the children regarding: (a) the child find process; (b) the determination of the proportionate share of funds; (c) how the consultation process itself will operate throughout the year; and (d) how, where, and by whom special education and related services will be provided, including a discussion of the types of services, including direct services and alternate service delivery mechanisms; how special education and related services will be apportioned if funds are insufficient to serve all children; and how and when those decisions will be made.17

Proportionate Share Expenditures

LEAs must consider those parentally-placed private school children with disabilities enrolled by their parents in private schools located in the LEA that meet the definition of elementary school and/or secondary school when determining two different proportionate share expenditures:

For children aged 3 to 21, the LEA must spend an amount that is the same proportion of the LEA's total subgrant under section 611(f) of the IDEA (20 United States Code [U.S.C.] § 1411(f)) as the number of private school children with disabilities aged 3 to 21 who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, is to the total number of children with disabilities in the LEA’s jurisdiction aged 3 to 21.

For children aged 3 to 5, the LEA must spend an amount that is the same proportion of the LEA's total subgrant under section 619(g) of the IDEA (20 U.S.C. § 1419(g)) as the number of parentally-placed private school children with disabilities aged 3 to 5 who are enrolled by their parents in a private, including religious, elementary school located in the LEA, is to the total number of children with disabilities in the LEA’s jurisdiction aged 3 to 5.

The cost of carrying out child find activities cannot be considered in determining if an LEA has met its obligation for proportionate share expenditures.

Sample Calculation for 611(f), Ages 3 to 21

There are five (5) eligible parentally-placed private school children with disabilities enrolled in private schools located in Anytown District (inclusive of home school students) that meet the definition of elementary school or secondary school. Anytown District also serves 495 eligible students with disabilities who reside in and are enrolled in the District.

The total number of eligible students age 3 to 21 is 500. The District’s proportion of eligible parentally-placed private school students with disabilities age 3 to 21 to all eligible students with disabilities age 3 to 21 is 5 to 500, or 1%.

Anytown District received $200,000 for its 611(f) grant. Because the proportion of parentally-placed private school children with disabilities is 1% of all students with disabilities, the proportionate share of the 611(f) funds is 1% of the total grant of $200,000, or $2,000.

Anytown District must spend at least $2,000 of its 611(f) grant on services for the five parentally-placed private school students with disabilities age 3 to 21 enrolled in private schools located in the LEA to meet its proportionate share obligation for the 611(f) grant.

Sample Calculation for 619(g), Ages 3 to 5

Of the five eligible parentally-placed private school children with disabilities enrolled in private schools located in Anytown District, one (1) is a preschool-aged child (age 3 to 5) enrolled in a private preschool that meets the definition of elementary school. Anytown District also serves nine (9) eligible preschool students with disabilities who reside in and are enrolled in the District.

The total number of eligible students age 3 to 5 is 10. The District’s proportion of eligible parentally-placed private school students with disabilities age 3 to 5 to all eligible students with disabilities age 3 to 5 is 1 to 10, or 10%.

Anytown District received $2,500 for its 619(g) grant. Because the proportion of parentally-placed private school children with disabilities age 3 to 5 is 10% of all eligible students with disabilities age 3 to 5, the proportionate share of the 619(g) funds is 10% of the total grant of $2,500, or $250. Anytown District must spend at least $250 of its 619(g) grant on services for the one parentally-placed private school student with a disability age 3 to 5 enrolled in a private school located in the LEA to meet its proportionate share obligation for the 619(g) grant.

Carryover

If an LEA has not expended all proportionate share funds by the end of the fiscal year for which Congress appropriated the funds, the LEA must obligate the remaining funds for special education and related services (including direct services) to parentally-placed private school children with disabilities during a carry-over period of one additional year.

Proportionate Share Documents

2023–24 Proportionate Share Calculation Worksheet (PDF)

2023–24 Proportionate Share Assurance Form (PDF)

California Longitudinal Pupil Achievement Data System (CALPADS) Data Reporting

To enter a preschool age student in a private school that will be served on an Individualized Service Plan (ISP), the LEA should:

• Create an enrollment
  • Enrollment status 50 – NonADA Enrollment
  • School of Attendance – 0000002
  • Grade Level – PS
  • Enrollment Start Date – Date of parental consent for evaluation
• If student is determined to be eligible:
  • Submit a PLAN record with a Plan Type Code of 200 – ISP
  • Submit a SWDS record with Status 1 – Eligible and Participating
• If the student is determined to be ineligible
  • Submit an enrollment exit with an Student Exit Category of N470 - NoShow
    

Frequently Asked Questions (FAQs)

Equitable Services and Proportionate Share FAQs

In May 2024, the California Department of Education (CDE) updated the guidelines for equitable services and proportionate share parentally placed private school children with disabilities aged 3–21. Implementation of these guidelines went into effect immediately upon release. The following are some FAQs the CDE has received regarding these guidelines.

1. What is the state definition of elementary school and what grades are eligible for equitable services? What about students that are homeschooled?
   
   California Education Code §§ 48000(d); 46114(c); and 46115 provide that kindergarten (including transitional kindergarten or TK) is considered elementary education. Therefore, in California the equitable services provisions apply to a student with a disability aged 3–5 enrolled by their parents in a private school that offers preschool and any grade TK or above.
   
   California recognizes home schools as private elementary schools and secondary schools. Children with disabilities in such home schools must be treated in the same way as other parentally placed private school children with disabilities.
   
   
2. Is a local educational agency (LEA) required to provide an individual service plan (ISP) rather than an individual education plan (IEP) to students aged 3–5 in a parentally placed private school? Can the LEA continue to provide an IEP until age 5, then transfer to ISP?
   
   LEAs are required to make the offer of Free and Appropriate Public Education (FAPE) to any preschool-age student with disabilities within the LEA’s boundaries, even those enrolled in private schools. If the parent/guardian declines the offer of FAPE and elects to keep the student enrolled in the private preschool, the LEA may serve the student on an ISP if the private school is within the LEA’s boundaries and the parent/guardian agrees to the ISP. All parentally placed private school students aged 3–21 are eligible for ISP services if they are enrolled in a program connected to an elementary or secondary school.
   
   
3. Are proportionate share calculations based on individual districts or Special Education Local Plan Area (SELPA) totals?
   
   Calculations will be based on SELPA totals, as they are currently done.
   
   
4. Is the same eligible three-year-old to be counted for proportionate share in both grants?
   
   Yes, a student could be counted for proportionate share in both the 611(f) grant (children aged 3–21) and the 619(g) grant (children aged 3–5).
   
   
5. How does an ISP differ from an IEP?
   
   Children with disabilities enrolled in public schools or who are publicly placed in private schools or facilities by public agencies are entitled to FAPE and must receive the full range of services under Part B of IDEA. 34 C.F.R. §§ 300.101, 300.146, and 300.201. These services, as deemed necessary to meet the child’s individual needs and to provide FAPE to the child, are determined by the child’s IEP Team. Generally, the IEPs for these children will be more comprehensive than ISPs developed for parentally placed private school children with disabilities who are designated to receive services. This is because no parentally placed child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school. 34 C.F.R. § 300.137(a).
   
   Further, an ISP should reflect only the services offered by the LEA to a parentally placed private school child with a disability designated to receive services. An ISP, to the extent appropriate, is required to meet the IEP content requirements described in 34 C.F.R. § 300.320 or when applicable, for children aged 3–5, the individualized family service plan (IFSP) requirements described in 34 C.F.R. § 303.344, and only in relation to the services that are to be provided. 34 C.F.R. § 300.138(b)(2).
   
   
6. Could a student aged 3–5, enrolled by the parent in a private preschool, be concurrently enrolled in their home district to receive IEP services if they accept the offer of FAPE ? Is dual enrollment allowed at any age/grade?
   
   A child meeting the statutory age definition of the California State Preschool Program (CSPP), 3–5 years old who has an IEP is eligible to receive the CSPP services regardless of whether they are attending private school or not.
   
   There is nothing in statute that prevents a student with disabilities from being enrolled concurrently in both private and public schools. However, in order for this student to generate attendance for the purpose of apportionment (average daily attendance) at the school district, the student must be educated consistent with their IEP. For example, if the student has an IEP that calls for a shorter instructional day than the minimum established in statute, the minimum day for that student would be established by their IEP.
   
   
7. Are proportionate share calculations for the 619 grant only for students on ISP?
   
   All children who have been evaluated and found eligible for special education and related services—not solely those children who receive services through an IEP or services plan—must be included in the count to calculate the proportionate share. See 34 C.F.R. §§ 300.132(c) and 300.133(c).
   

FAQs for Preschool Enrollments Needing Updates

These FAQs can be found on the California Department of Education, CALPADS Frequently Asked Questions web page

Which students with disabilities need an Statewide Student Identifier (SSID)?

What is the appropriate Enrollment Status and Enrollment Start Date to use when creating SSIDs and enrollments for students who are being newly evaluated for special education?

Can LEAs use Enrollment Status 50 – Non-Average Daily Attendance (ADA) for early Transitional Kindergarten (TK) students (TK students who are not yet five years old)?

Federal Resources

Code of Federal Regulations (CFR), Title 34 sections 300.130 through 300.144

The U.S. Department of Education’s commentary on the regulations is found at Volume 71, Federal Register, No. 156, August 14, 2006, pp. 46589 through 46597 (PDF)

Individuals with Disabilities Education Act Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools (rev. Feb 2022)

The Individuals with Disabilities Education Act: Provisions Related to Children With Disabilities Enrolled by Their Parents in Private Schools (PDF)

U.S. Department of Education, Office of Non-Public Education

Footnotes

1 34 Code of Federal Regulations (C.F.R.) § 300.130.
2 34 C.F.R. §§ 300.145 through 300.147.
3 71 Federal Register 46591 (August 14, 2006); 34 C.F.R. § 300.133(a)(2)(i), (ii).
4 Questions and Answers on Serving Children with Disabilities Placed by their Parents in Private Schools, U.S. Department of Education, Office of Special Education Programs (OSEP), QS 22-01, Question J-3 (February 28, 2022).
5 34 C.F.R. § 300.13.
6 See, e.g., California Education Code §§ 48000(d); 46114(c); 46115.
7 Questions and Answers on Serving Children with Disabilities Placed by their Parents in Private Schools, U.S. Department of Education, Office of Special Education Programs (OSEP), QS 22-01, Question I-1 (February 28, 2022).
8 Jonathan L. v. Superior Court, 165 Cal. App. 4th 1074 (2008).
9 34 C.F.R. § 300.131(a).
10 34 C.F.R. § 300.131(c).
11 34 C.F.R. § 300.132(a).
12 34 C.F.R. § 300.137(a).
13 34 C.F.R. §§ 300.132(b); 300.137(c)(1); 300.138(b).
14 34 C.F.R. § 300.138(a)(2).
15 34 C.F.R. § 300.138(c)(1).
16 34 C.F.R. § 300.139(a).
17 34 C.F.R. § 300.134(a)-(d).
18 34 C.F.R. § 300.133(a)(1), (2).
19 34 C.F.R. § 300.131(c).
20 34 C.F.R. § 300.133(a)(3).