FAPE, placement at no cost to parent - OSEP letter

[Sheila]

FAPE, placement at no cost to parent - OSEP policy letter


http://www.ed.gov/policy/speced/guid/idea/letters/2006-4/covall122206fape4q2006.pdf

Dated December 22, 2006


Mr. Mark Covall
Executive Director
National Association of Psychiatric Health Systems
701 13th Street, NW, Suite 950
Washington, Difficult Child 20005-3903

Dear Mr. Covall:

This is in response to your October 2, 2006 letter in which you pose two questions: (1) For children who are placed by a non-educational public agency (e.g., mental health, social services, juvenile justice), which local educational agency (LEA) would be responsible for payment for special education/related services if the sending agency did not pay? Would the LEA where the child/family resides be responsible, or would it be the LEA where the facility is located? and (2) If the LEA where the facility is located is responsible and the child is from out of state, which state’s interagency agreement would govern – again, the state where the facility is located or the state of the child’s residence?

Under Part B of the Individuals with Disabilities Education Act (IDEA), each State (through its State educational agency (SEA)) must ensure that a free appropriate public education (FAPE) is available to all eligible children with disabilities in mandated age ranges residing within the State . 1 FAPE is made available through the LEAs and other public agencies 2 in the State, under the general supervision of the SEA. 20 U.S.C. 1402(8) and 1412(a)(1)(A); 34 CFR §§300.101 and 300.149. This obligation to ensure that a FAPE is available encompasses children with disabilities who are placed by a non-educational public agency, such as a mental health, social services or juvenile justice agency.

If a public agency determines in an individual situation that an eligible child cannot receive an appropriate education from the programs that the public agency conducts and, therefore, placement in a public or private residential program is necessary in order to provide special education and related services to the child, the program, including non-medical care and room and board, must be at no cost to the parents of the child. 34 CFR §300.104. In addition, each SEA must ensure that a child with a disability who is placed in, or referred to, a private school or facility by a public agency is provided special education and related services in conformance with the child’s individualized education program (IEP), and with the standards that apply to education provided by the SEA and LEAs (including the requirements of IDEA-Part B). 20 U.S.C. 1402(8) and 1412 (a)(10)(B); 34 CFR §300.146.

For a child placed outside the State by an educational or non-educational State or local agency, the State initiating the placement (i.e., the “placing State”) generally is responsible for ensuring that the child’s IEP is developed and implemented. 34 CFR §§300.101 and 300.149. This is because the obligation to make FAPE available covers all children with disabilities residing in the State. Residence is not the location of the school or facility in the State where the child has been placed. As traditionally interpreted by the Department, a child is a resident of the State in which (1) the parent or guardian legally resides, or (2) the child is a ward of the State.

Determining the specific school district or LEA in a State that is responsible for the cost of a residential placement is a matter of State law, policy or practice. Although the IDEA does not address which LEA in a State is responsible for the cost of a placement under Part B, the SEA must exercise general supervision over all educational programs for children with disabilities residing in the State, and has ultimate responsibility for ensuring the availability of FAPE to these children. 34 CFR §300.149. Therefore, if there is a question regarding which LEA is responsible for the cost of a placement, the SEA is responsible for ensuring that the issue is resolved.

Each State may use whatever State, local, Federal, and private sources of support are available in the State to cover the cost of serving an eligible child who is publicly-placed in a residential program. However, the State must ensure that there is no delay in implementing a child’s IEP, including any case in which the payment source for providing or paying for special education and related services is being determined. 34 CFR §300.103(a) and (c).

Under the requirements of 34 CFR §300.154, the SEA must also ensure that an interagency agreement or other mechanism for interagency coordination is in effect between the SEA and each non-educational public agency that is otherwise obligated under Federal or State law to provide or pay for any special education and related services necessary for ensuring FAPE to children with disabilities within the State. 34 CFR §300.154(a).

If a public agency other than educational agency fails to provide or pay for these special education and related services, the LEA (or State agency responsible for developing the child’s IEP) must provide or pay for these services in a timely manner. The LEA or State agency may then claim reimbursement for the services from the non-educational public agency that failed to provide or pay for those services, and that agency must reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism. 34 CFR §300.154(b)(2).

Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented.

If you have any other questions, please feel free to contact my office. I hope the information in this letter adequately addresses your questions.

Sincerely,

/s/ Patricia J. Guard for

Alexa Posny, Ph.D.
Director
Office of Special Education Programs

1 Children whose parents have placed them in a private school or facility even thought FAPE was available are an exception to this rule.
2 The term “public agency” includes the SEA, LEAs, Educational Service Agencies (ESAs), nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities. 34 CFR §300.33.
3 Although additional provisions apply in order to ensure that an impartial person acts on behalf of the child when he or she is a ward of the State, that child retains all rights under IDEA. See 20 U.S.C. 1415(b)(2) and 34 CFR §§30.30 and 300.519.

 

[Sheila]

http://www.ed.gov/policy/speced/guid/idea/letters/2005-1/osep0508fape1q2005.pdf

Dated March 17, 2005

Contact Persons:
Name: JoLeta Reynolds
Telephone: (202) 245-7468
Name: Thomas Irvin
Telephone: (202) 245-7468


OSEP 05-08

MEMORANDUM

TO: State Directors of Special Education

FROM: Patricia J. Guard
Acting Director
Office of Special Education Programs

SUBJECT: Educational Expenses for Children in Private Residential Facilities

As you may know, the number of children with disabilities in private residential treatment programs continues to rise. For example, data collected by the Office of Special Education Programs (OSEP) regarding services under the Individuals with Disabilities Education Act (IDEA) show that in the 2002-03 school year 21,673 eligible children received special education and related services at public expense in those facilities, compared to 15,941 children in the 1998-99 school year.† Such residential placements are often very expensive. In some cases, the total annual cost for placement in a residential facility, including room, board, therapies, and educational services, may exceed $100,000 for a single child in a school year.

In meetings with representatives of the Youth Services Committee of the National Association of Psychiatric Health Systems (NAPHS), these representatives identified problems they periodically face when a new child enters their facility -- in determining the appropriate educational agency responsible for providing (or paying for) special education and related services, or for evaluating the child. Having this information available at the outset is crucial to staff in residential facilities, in order to ensure that service arrangements are effectively established for the child with the responsible educational agency, and, thus, that appropriate special education and related services are provided to the child in a timely manner.


The statute and regulations for IDEA-Part B include a number of relevant provisions that directly relate to the responsibilities of State educational agencies (SEAs) and local educational agencies (LEAs) in providing special education and related services to eligible children who are placed in or referred to private residential facilities. We are including with this memorandum a summary description of those key provisions for your information and use (see Attachment).

To the extent appropriate, we encourage you to share the attached provisions with LEAs and other appropriate public agencies in your State. We have also asked NAPHS to encourage its members -- before accepting a new child in their residential facilities -- to communicate with appropriate public educational officials about the child. Through these efforts, written agreements can be developed in order to clarify respective responsibilities regarding both financial matters and the coordination or provision of services.

Establishing meaningful and effective communication “before the fact” between personnel in all agencies and facilities that are involved with a given child, including educational and non-educational public agencies in the State (e.g., social service and social welfare agencies), if applicable, as well as staff from private residential facilities, should benefit all affected parties, but especially the children who have been placed in or referred to those facilities.

If you have any questions or comments about this memorandum, please contact your Part B State contact in OSEP, or the persons listed on page one of this memorandum.

Attachment

cc: Chief State School Officers
Federal Resource Center
Regional Resource Centers
Independent Living Centers
Parent Training Centers
Protection and Advocacy Agencies
Part C Coordinators
Section 619 Coordinators



Attachment

Responsibilities for Serving Children with Disabilities in Private
Residential Facilities Under IDEA-Part B

The following is a description of the key provisions under Part B of the Individuals with Disabilities Education Act (IDEA) regarding the responsibilities of State and local education agencies and other public agencies in providing for the education of children with disabilities placed in or referred to private residential programs:

A. Free Appropriate Public Education
Under Part B of the IDEA each State (through its State educational agency (SEA)) must ensure that a free appropriate public education (FAPE) is available to all eligible children with disabilities in mandated age ranges residing in the State. FAPE is made available through the local educational agencies (LEAs) and other public agencies in the State, under the general supervision of the SEA. 20 U.S.C. §§1402(8) and 1412(a)(l)(A); 34 CFR §§300.300 and 300.600.

If a public agency determines in an individual situation that an eligible child cannot receive an appropriate education from the programs that the public agency conducts, and, therefore, placement in a public or private residential program is necessary in order to provide special education and related services to the child, the program, including non-medical care and room and board, must be at no cost to the parents of the child. 34 CFR §300.302. In addition, each SEA must ensure that a child with a disability who is placed in, or referred to, a private school or facility by a public agency is provided special education and related services in conformance with the child’s individualized education program (IEP), and with the standards that apply to education provided by the SEA and LEAs (including the requirements of IDEA-Part B). 20 U.S.C. §§1402(8) and 1412(a)(10)(B) and 34 CFR §300.401.

B. Out of State Placements
For a child placed outside the State by an educational or non-educational State or local agency, the State initiating the placement (i.e., the “placing State”) is responsible for ensuring that the child’s IEP is developed and implemented. (Question 16, Appendix A to Part 300).

It is the child’s or parent’s residence that defines “placing State” and creates a State’s duty under the Act and regulations, not the location of the school or facility in the State where the child has been placed. As traditionally interpreted by the Department, a child is a resident of the State in which (1) the parent or guardian legally resides, or (2) the child is a ward of the State. Where State law specifically addresses residency, such provisions would apply.

C. Determining Local Residence
Determining the specific school district or LEA in a State that is responsible for the cost of a residential placement is a matter of State law, policy or practice. (Question 16, Appendix A to Part 300). Although the IDEA does not address which LEA in a State is responsible for the cost of a placement under Part B, the SEA must exercise general supervision over all educational programs for children with disabilities residing in the State, and has ultimate responsibility for ensuring the availability of FAPE to these children. 34 CFR §300.600. Therefore, if there is a question regarding which LEA is responsible for the cost of a placement, the SEA is responsible for ensuring that the issue is resolved.

D. Determining Covered Services
Under the IDEA, the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes, among other things, counseling services; psychological services; therapeutic recreation services; school health services; and medical services for diagnostic or evaluation purposes (i.e., provided by a licensed physician to determine a child's medically related disability that results in the child's need for special education and related services). Two Supreme Court decisions have set out the proper analysis for determining whether certain services that are medically related fall under the definition of related services in the IDEA. See, Irving Indep. Sch. Dist. v. Tatro, 468 US 883 (1983) and Cedar Rapids Comm. Sch. Dist. v. Garrett, 526 US 66 (1999).

The determination of whether a child requires therapeutic and habilitation services, including the therapeutic and habilitation components of a residential treatment program, as related services under the IDEA is made on an individual basis by the child's IEP team.
In situations where the IEP team determines that the child's educational needs are inseparable from the child's other needs or the child is determined, on an individual basis, to require the therapeutic and habilitation components of a residential program in order to receive a free appropriate public education, in general, these services would be considered to be related services under the IDEA. In such cases, the SEA is responsible for ensuring that the entire cost of the special education and related services provided at the residential placement, including the therapeutic and habilitation services, as well as room and board, is provided without cost to the parents. (See, 34 CFR §300.302 and the discussion of financial arrangements in Item E, below.)

If, on the other hand, the IEP team determines that the child's therapeutic and habilitation services needs are separate and distinct from the child's educational needs, and the therapeutic and habilitation components of the residential placement are not required in order for the child to receive a free appropriate public education, the responsibility of the SEA, LEA, or other public agency is limited only to the special education and related services listed on the child's IEP.

E. Paying for FAPE—Methods of Ensuring Services
Each State may use whatever State, local, Federal, and private sources of support are available in the State to cover the cost of serving an eligible child who is publicly-placed in a residential program. However, the State must ensure that there is no delay in implementing a child’s IEP, including any case in which the payment source for providing or paying for special education and related services is being determined. 34 CFR §300.301(a) and (c).

Questions regarding which public agency is responsible for the cost of a placement are to be addressed under the provisions of 34 CFR §300.142. Under those requirements, the SEA must ensure that an interagency agreement or other mechanism for interagency coordination is in effect between the SEA and each non-educational public agency that is otherwise obligated under Federal or State law to provide or pay for any special education and related services necessary for ensuring FAPE to children with disabilities within the State. 34 CFR §300.142(a).

If a public agency other than an educational agency fails to provide or pay for these special education and related services, the LEA (or State agency responsible for developing the child’s IEP) must provide or pay for these services in a timely manner. The LEA or State agency may then claim reimbursement for the services from the non-educational public agency that failed to provide or pay for those services, and that agency must reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism. 34 CFR §300.142(b)(2).

 

[Sheila]

Re: fees involving Extended School Year (ESY)

http://www.ed.gov/policy/speced/guid/idea/letters/2002-2/sims062702-2q2002.pdf

Dated June 27, 2002


Dr. Anthony E. Sims
Director of Special Education
Specialized Support Programs
Illinois State Board of Education
100 N First Street, Room N243
Springfield, Illinois 62777-0001

Dear Dr. Sims:

X sent a letter to Senator Peter G. Fitzgerald, in which she raised issues regarding the Illinois State Board of Education’s (ISBE’s) response to a complaint that she had filed regarding extended school year services for her child. Senator Fitzgerald forwarded that letter to Assistant Secretary Rebecca O. Campoverde, Office of Legislation and Congressional Affairs, and asked that the Department of Education respond directly to X. Her letter has been referred to the Office of Special Education Programs for a response.

In reviewing documentation relevant to X, we reviewed a letter dated July 10, 2001 (copy enclosed) from ISBE’s Special Education Compliance Division setting forth ISBE’s decision on X complaint. In that letter, ISBE concludes that it was not inconsistent with the requirements of Part B of the Individuals with Disabilities Education Act (Part B) for the school district to charge parents a $15 materials fee for students receiving extended school year services. ISBE’s letter indicates that it based its decision on the provisions of 34 CFR §300.26(b)(1), which provides that, “At no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.” ISBE noted that the district charged a $15 materials fee to nondisabled students attending summer school.

As required by Part B at 34 CFR §300.309, if extended school year services are necessary in order to ensure that a child with a disability receives a free appropriate public education, the public agency must include such extended school year services in the child’s individualized education program (IEP) and must provide them at no cost to the parents. Although, as provided at 34 CFR §300.26(b)(1), the Part B “at no cost” requirement does not “preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program, ” it would be inconsistent with the requirements of 34 CFR §300.309 for a public agency to charge parents a fee for extended school year services if summer school services, for which incidental fees are charged, are not a part of the extended school year services provided to the student.

Please review ISBE’s decision and, to the extent that it is not consistent with this letter, please revise the decision and take appropriate action to ensure that the district corrects any noncompliance.

If you have any questions regarding this letter, please contact Lawrence Ringer or Cynthia Bryant of my staff.

Sincerely,

/s/ Patricia J. Guard for

Stephanie S. Lee
Director
Office of Special Education Programs

cc:

 

[Sheila]

http://www.ed.gov/policy/speced/guid/idea/letters/2001-3/cousineau070501fape.pdf

Dated July 5, 2001




Mr. R. David Cousineau, President, and
Mr. David L. Halbett, Manager, Therapeutic Services
Seattle Children’s Home
2142 Tenth Avenue West
Seattle, Washington 98119

Dear Mr. Cousineau and Mr. Halbett:

This is a response to the four inquiries set forth in your November 8, 2000 letter and during subsequent telephone discussions between Mr. Halbett and Troy Justesen of our office. You asked for clarification of the child-find, educational and financial responsibilities under the Individuals with Disabilities Education Act (IDEA) for children with disabilities who are Washington residents and placed in the Seattle Children’s Home School, a private in-patient/residential psychiatric treatment program. You specifically asked if these responsibilities vary based on (1) whether the placement was made by an agency, a court or the child’s parent and (2) the fact that the State is the guardian of a child. Our responses are based on the information provided in your letter and during your follow-up telephone conversations with our staff.

By way of background, Part B of the IDEA requires each State educational agency (SEA) to ensure that all children with disabilities in the State have the right to a free appropriate public education (FAPE). 20 U.S.C. §§1402(8) and 1412(a)(1)(A); 34 CFR §§300.300 and 300.600. The only exception to this rule are children whose parents have placed them in a private school or facility even though FAPE was available. (This point is explained in more detail below). If a public agency determines in an individual situation that the student cannot receive an appropriate education from the programs that the public agency conducts and therefore placement in a public or private residential program is necessary to provide special education and related services to the child, the program, including non-medical care and room and board, must be at no cost to the parents of the child. 34 CFR §300.302.

Furthermore, each SEA shall ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency is provided special education and related services in conformance with the child’s individualized education program (IEP) and with the standards that apply to education provided by the SEA and local educational agencies (LEAs) at no cost to the parents. A child placed by a public agency with responsibility for providing education to children with disabilities in a private school or facility has all of the rights of a child with a disability who is served by a public agency. 20 U.S.C. §§1402(8) and 1412(a)(10)(B) and 34 CFR §300.401. See, e.g., Kerr Center Parents Assn. v. Charles, 897 F.2d 1463 (9th Cir. 1990).

In situations where a student’s educational needs are inseparable from the child’s emotional needs and the student is determined on an individualized basis to require the therapeutic and habilitation services of a residential program in order to “benefit from special education”, these therapeutic and habilitation services may be “related services” under the IDEA. 34 CFR §300.24. In such a case, the SEA is responsible for ensuring the entire cost of that placement, including the therapeutic care as well as room and board, is without cost to the parents. However, the SEA is not responsible for providing medical care and, thus, visits to a doctor for treatment of medical conditions are not covered as services under Part B. As stated earlier, parents are not required to bear the costs of residential placement where such placement is determined essential to provide FAPE. However, the SEA can and should look to other sources for financial contributions needed to cover such costs. 34 CFR §300.600. Under Part B, the SEA is responsible for identifying methods of ensuring services including clarifying the responsibilities of various State agencies, including both financial responsibility and coordination of services. 34 CFR §300.142. If it is necessary, for example, to place a child with a disability in a residential facility, a State may utilize interagency agreements with other State agencies in order to determine how to share the cost of that placement. See, 34 CFR §§300.142 and 300.301. If, on the other hand, the child’s emotional disturbance is distinct from the student’s academic learning and the habilitation and treatment components of the residential placement are not required in order for the child to benefit from special education, the SEA’s responsibility is limited to the educational portion of the residential placement.

The determination of whether the treatment and habilitation components of a residential treatment program are “related services” under the IDEA is made on an individualized basis by the child’s IEP team. Your comment that some of the students are placed in your facility based on their having met medical necessity criteria for a State program does not negate the independent requirement under the IDEA that the child’s IEP team (or a hearing officer or court decision issued under the IDEA) identify the FAPE requirements for a child. Either before or immediately after a public agency places a child with a disability in, or refers a child to, a private school or facility, an IEP team meeting would need to be convened to develop an IEP for the child (or review and, if necessary, revise an existing IEP). The public agency must ensure that a representative of the private school or facility attends the meeting. 34 CFR §300.344(a). If the representative cannot attend, the agency shall use other methods to ensure participation by the private school or facility, including individual or conference telephone calls. Even if a private school or facility implements a child’s IEP, the responsibility for compliance remains with the public agency and the SEA. See, 34 CFR §300.349.

An issue underlying the questions stated earlier is which school district in the State is responsible for the cost of these residential placements. This is a matter of State law and, generally, States allocate responsibility for the provision of FAPE based on the school district in which the child’s parents reside. Although Part B of the IDEA does not address which school district in a State is responsible for the cost of a placement, under Part B, the SEA must exercise general supervision over all educational programs for children with disabilities residing in the State, and has the ultimate responsibility for ensuring the availability of FAPE to these children. 34 CFR §300.600. Therefore, if there is a question regarding which school district is responsible for the cost of a placement, the State is responsible for ensuring that the issue is resolved.

However, when FAPE has been offered that meets the special education and related services needs of a child with a disability, and the parent chooses not to accept the program offered to their child by the LEA, and instead elects to enroll their child in a private school or facility, then the district is not required to pay for that child’s private education. See, 20 U.S.C. §1412(a)(10)(A) with exceptions set forth at 1412(a)(10)(C); 34 CFR §300.403. Parentally-placed private school children with disabilities have no individual right to special education and related services under Part B of the IDEA and thus, a school district is not required to serve every parentally-placed private school child with a disability. See, 34 CFR §§300.403 and 300.450. If a school district elects to serve a particular parentally-placed private school child with a disability, it is not required to provide that child with the full range of services under Part B.

With respect to the identification and evaluation of children suspected of having a disability as defined under the IDEA, such requirements also apply to parentally-placed private school children, including children in private psychiatric treatment programs. This requirement is termed “child find” and applies to all children with disabilities residing in the State. 20 U.S.C. §1412(a)(3)(A) and 34 CFR §300.125. Child find refers to ongoing activities undertaken by SEAs and, as appropriate, to LEAs to locate, identify, and evaluate all children residing in the State who are suspected of having disabilities under the IDEA. Under Part B, each LEA must conduct child find for all children in public and private schools, including religious schools and other private facilities, residing in the jurisdiction of the LEA, regardless of the severity of their disability, who are in need of special education and related services. See, 34 CFR §300.451. Once children are identified who are suspected of having disabilities under Part B, LEAs must have procedures for conducting, at no cost to parents, evaluations to determine eligibility for services under the IDEA of such children residing in their jurisdiction within a reasonable period of time.

Regarding your inquiry as to whether the fact that the State is a guardian of the child does not change our discussion above as to the SEA’s responsibility to ensure that FAPE is provided at no cost to a child with a disability. Under the IDEA, separate provisions apply when a child is a ward of the State but these provisions are designed to ensure that an impartial person acts on behalf of a child with a disability in, among other things, providing consent, attending IEP meetings, and determining educational placements. See, 20 U.S.C. §1415(b)(2) and 34 CFR §§300.20(a)(4) and 300.515.


We hope that this information is helpful. If you need further information regarding this matter, you may contact Troy Justesen at 202-205-9053, or JoLeta Reynolds at 202-205-5507.

Sincerely,

/signed Patricia J. Guard/

Patricia J. Guard
Acting Director,
Office of Special Education Programs


cc: Dr. Douglas Gill
Washington Department of Public Instruction