Comments on Proposed Regulations for

IDEA 2004 – July 12, 2005

Good afternoon. My name is Marie Powell. I am Assistant Secretary for Parental Advocacy in the Department of Education of the United States Conference of Catholic Bishops. My colleagues and I appreciate the changes made to IDEA to help ensure that federal funds will be used to provide fair and equitable special education and related services to private school students with disabilities. We are also grateful to those who have worked on developing regulations as they pertain to parentally-placed private school students.

Our Office of General Counsel will be submitting written comments on the proposed regulations for implementing IDEA 2004. At this public meeting, however, I wish to address some of the sections in the proposed regulations which relate to students with disabilities who are placed by their parents in private schools.

During this last academic year, over 2.4 million students were enrolled in nearly 8000 Catholic elementary and secondary schools in the United States. A research study conducted in 2002 revealed that 7% of students enrolled in Catholic schools have disabilities which were identified through the Child Find process. Unfortunately, that same study found that less than 1% of those found to have a disability received any services under IDEA.

With this disturbing statistic in mind, I wish to comment on three parts of the proposed regulations.

Section 330.131 – LEA responsible for serving parentally-placed private school students with a disability. This section of the proposed regulations clarifies that the local education agency with the responsibility to locate, identify, evaluate, and, in some cases, serve parentally-placed private school students with a disability is the LEA in which the student’s private school is located. This is a change, since previously the LEA where the student resided had that responsibility.

We would like to thank the Department of Education for drafting language for the proposed regulations that is clearer about this change than the language used in the statute. We would also like to thank the Office of Special Education and Rehabilitative Services for its June 27 th Memorandum on the obligations of States and LEAs to parentally-placed private school children with disabilities. This memorandum should leave no doubt that after July 1, 2005, LEAs and representatives of the private schools located within them should engage in the consultation and data collection necessary to ensure parentally-placed private school students with a disability are treated equitably under IDEA.

Sections 300.132(a) and 300.134(d)(1) – Direct services. The proposed regulations, in both of these sections, refer generally to services a parentally-placed private school student with a disability might receive and use the phrase “including direct services.”

Recommendations: In section 300.132 “direct services” be defined, e.g.: services provided by a professional directly to a child with a disability.

We further recommend that rather than saying “including direct services,” the stronger language of the legislative history be incorporated into the regulations.

The House Report for IDEA 2004, on page 94, states:

The Committee expects that the majority of the funds expended for this purpose [serving parentally-placed private school students] will be for direct services…

The Senate Report, on page 15, states

The bill specifically states that to the extent practicable, the LEA shall provide direct services to children with disabilities in private schools. It is the committee’s intent that school districts place a greater emphasis on services provided directly to such children—like specifically designed instructional activities and related services—rather than devoting funds solely to indirect services such as professional development for private school personnel.

We urge that the regulations reflect the Committee reports and make clear that the preference for private school children, as with all children with a disability, is to provide services directly to students unless there is a compelling reason not to do so.

Section 300.139(a) – On site services. The regulations, as proposed, state that “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.”

This language does not adequately convey Congressional intent on this topic. House Committee Report 108-77, on page 95, explains:

The Committee wishes to make clear that local educational agencies should provide direct services for parentally-placed private school students with disabilities (as for most students) on site at their school, unless there is a compelling rationale for such off site services. Such intent indicates the preference that providing services on site at the private school is more appropriate for the student and less costly in terms of transportation and liability.

The language of the proposed regulation also does not convey the priority for on site services that is reflected earlier in the NPRM. The section of the preamble referencing Sec. 300.139, at 70 Federal Register 35789, states:

It should be noted that LEAs should provide such services for parentally-placed private school children with disabilities on site at their school, unless there is a compelling rationale for these services to be provided off site.

Recommendation: This language should be repeated in Sec. 300.139 of the regulations so that there can be no doubt on site services should be the first delivery method considered for private, as well as public, school students with disabilities.

Thank you for this opportunity to comment on the proposed regulations. As I mentioned earlier, the USCCB will also be submitting written comments on additional sections of the NPRM later this summer.

Marie A. Powell

Assistant Secretary for Parental Advocacy

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