3040 PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WHEN FAPE IS NOT AT ISSUE

3040.1 DCPS is responsible for child find activities that are:

1. (a) Designed to ensure the equitable participation of parentally-placed private school children; and
2. (b) Similar to and implemented in a comparable timeframe as those activities undertaken for the population of children enrolled in DCPS.

3040.2 DCPS shall provide necessary materials and guidance to private schools to enable private school representatives to facilitate the referral process by providing sufficient information, documentation, and support to parents and other referral sources that can refer parentally-placed private school children for evaluation.

3040.3 To ensure timely and meaningful consultation, DCPS shall consult with private school representatives and representatives of parents of parentally-placed private school children with disabilities on all of the following:

1. (a) The child find process, including:
2. (1) How parentally-placed private school children suspected of having a disability can participate equitably; and
3. (2) How parents, teachers, and private school officials will be informed of the process;
4. (b) The determination of the proportionate share of funds available to serve parentally-placed private school children with disabilities, including how the proportionate share of those funds was calculated;
5. (c) The consultation process among DCPS, private school officials, and representatives of parents of parentally-placed private school children with disabilities, including how the process will operate throughout the school year to ensure that parentally-placed children with disabilities identified through the child find process can meaningfully participate in special education and related services;
6. (d) How, where, and by whom special education and related services will be provided for parentally-placed private school children with disabilities, including a discussion of all of the following:
7. (1) The types of services, including direct services and alternate

service delivery mechanisms;

(2) How special education and related services will be apportioned if funds are insufficient to serve all parentally-placed private school children; and

(3) How and when those decisions will be made; and

(e) How, if DCPS disagrees with the views of the private school officials on the types of services or provision of services, DCPS will provide the private school officials with a written explanation of the reasons why DCPS chose not to provide services directly or through a contract.

3040.4 When timely and meaningful consultation has occurred, DCPS shall obtain a written affirmation signed by the representatives of participating private schools.

(a) Written affirmation shall be provided within a reasonable period of time; and

(b) If the representatives do not provide the affirmation within a reasonable period of time, DCPS shall forward the documentation of the consultation process to the SEA.

3040.5 DCPS is responsible for conducting timely evaluations, reevaluations, and eligibility determinations for resident and nonresident parentally-placed children attending private schools located in the District of Columbia, in accordance with all of the following:

(a) DCPS shall seek parental consent for initial evaluations and reevaluations;

(b) If the parent of a parentally-placed private school child declines to consent to an initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, DCPS may not use the consent override procedures to seek to conduct the evaluation;

(c) When parental consent is provided, DCPS shall conduct initial evaluations and determine eligibility within the State-mandated timeline;

(d) DCPS is responsible for conducting evaluations at least once every three (3) years to determine continued eligibility for equitable services, or when:

(1) DCPS determines that the child’s educational or related service needs, in light of the child’s academic achievement and functional performance, warrant a new evaluation; and

1. (2) The child's parent or teacher requests an evaluation; and
2. (e) Parents of parentally-placed private school children who disagree with the findings of an evaluation may request an independent educational evaluation from DCPS.3040.6 Following an initial determination of eligibility and upon any subsequent determination of eligibility, DCPS shall do all of the following:- (a) Provide written notice to the parent of a resident child that DCPS will make FAPE available to the child if the child enrolls in a DCPS public school; and
3. (b) Advise the parent of a nonresident child to contact their resident LEA if they are interested in enrolling the child in a public school to receive FAPE as follows:
4. (1) DCPS shall obtain parental consent prior to releasing evaluation and eligibility determination information or other personally identifiable information to the child's resident LEA; and
5. (2) DCPS is not required to obtain parental consent prior to releasing if the parent seeks enrollment in the child's resident LEA and the resident LEA requests records.3040.7 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 be eligible for if enrolled in a public school.3040.8 For a parentally-placed private school child with a disability determined eligible for equitable services, DCPS shall do all of the following:- (a) Initiate and conduct meetings to develop, review, and revise a services plan for the child;
6. (b) Ensure that a representative of the private school attends each meeting. If the representative cannot attend, DCPS shall use other methods to ensure participation by the private school, including individual or conference telephone calls; and
7. (c) Make the final decisions with respect to the equitable services to be provided.

3040.9 Equitable services shall be provided by DCPS through its employees or through contract with an individual, association, agency, organization, or other entity.3040.10 Equitable services personnel shall meet the same standards as personnel providing services in public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities are not required to meet highly qualified special education teacher requirements.3040.11 Equitable services shall be provided:- (a) In accordance with a services plan developed and implemented to meet the individualized needs of the child; and

- (b) In a secular, neutral, and non-ideological manner, extending to the materials provided.3040.12 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.3040.13 DCPS is not required to provide transportation between the child's home and the private school. However, if necessary for the parentally-placed private school child to benefit from or participate in services, DCPS shall offer:- (a) To provide the child with transportation from the child's private school or the child's home to a site other than the private school; or

- (b) To provide the child with transportation from the service site to the private school or from the service site to the child's home, depending on the timing of services.3040.14 The decision of a parent of a parentally-placed private school child receiving equitable services to decline, in writing, DCPS-provided transportation and make alternative arrangements relieves DCPS of the obligation to provide transportation, until such time as the parent provides two (2) weeks written advance notice that DCPS-provided transportation is needed.3040.15 DCPS may place equipment and supplies in a private school;- (a) For such period of time needed to meet the equitable participation requirements of IDEA;

- (b) Only for purposes in accordance with IDEA; and

(c) Such equipment and supplies may be removed from the private school without remodeling the private school facility.

3040.16 Expenditures related to parentally-placed private school children shall adhere to the following:

1. (a) DCPS shall spend the following on providing equitable services to parentally-placed private school children with disabilities:
2. (1) For children between three (3) and twenty-two (22) years of age, an amount that is the same proportion of DCPS's total subgrant under IDEA as the number of private school children with disabilities between three (3) and twenty-two (22) years of age who are enrolled by their parent in private, including religious, elementary schools and secondary schools located in the District of Columbia, is to the total number of children with disabilities in the District of Columbia between three (3) and twenty-two (22) years of age; and
3. (2) For children between three (3) and five (5) years of age, an amount that is the same proportion of DCPS's total subgrant under IDEA as the number of parentally-placed private school children with disabilities between three (3) and five (5) years of age who are enrolled by their parent in a private, including religious, elementary school located in the District of Columbia, is to the total number of children with disabilities in the District of Columbia between three (3) and five (5) years of age;
4. (b) If DCPS has not expended for equitable services all of the funds described in this section by the end of the fiscal year for which the funds were appropriated, DCPS shall obligate the remaining funds for equitable services to parentally-placed private school children with disabilities during a carry-over period of one (1) additional year;
5. (c) State and local funds can supplement and in no case supplant the proportionate amount of Federal funds required to be expended for parentally-placed private school children with disabilities;
6. (d) DCPS may use funds under IDEA to make public school personnel available in private school facilities, if necessary, to provide equitable services for private school children with disabilities if those services are not normally provided by the private school;

(e) DCPS may use funds under IDEA to pay for the services of an employee of a private school to provide services to private school children if the employee performs the services outside of his or her regular hours of duty and under public supervision and control; and

(f) DCPS may not use funds under IDEA for repairs, minor remodeling, or construction of private school facilities.

3040.17 On an annual basis, DCPS shall:

(a) Determine the number of parentally-placed private school children with disabilities attending private schools located in the District of Columbia;

(b) Ensure that the count is conducted annually on October 5 or the date set by the SEA for the annual pupil count required by D.C. Official Code § 38-2906;

(c) Use the count to determine the amount that DCPS shall spend on providing equitable services to parentally-placed private school children with disabilities in the next fiscal year; and

(d) Report the following count data to the SEA:

(1) The list of private schools contacted;

(2) The number of referrals received from private schools and the number of referrals from parents of parentally-placed private school children;

(3) The number of children evaluated;

(4) The number of children determined to be eligible for services under IDEA; and

(5) The number of children served.

3040.18 A private school official has the right to submit a complaint to the SEA alleging that DCPS did not engage in consultation that was meaningful and timely, or did not give due consideration to the views of the private school official. If the private school official wishes to submit a complaint, the following shall apply:

(a) The official shall provide to the SEA the basis of the alleged noncompliance by DCPS with the applicable private school provisions of IDEA and shall forward the appropriate documentation to the SEA; and

(b) If the private school official is dissatisfied with the decision of the SEA, the official may submit a complaint to the Secretary of Education by providing the information described in this subsection and forwarding the appropriate documentation to the Secretary.

SOURCE: Final Rulemaking published at 69 DCR 005902 (May 27, 2022).