California Department of Education's New Guidance On Equitable Services For Parentally Placed Private Preschool Students With Disabilities

With the new school year in full swing, school districts should remain mindful of their ongoing obligations to preschool students placed by their parents in private schools. As a general rule, the Individuals with Disabilities Education Act (“IDEA”) requires responsible Local Educational Agencies (“LEAs”) to spend a proportionate amount of federal funding to provide equitable services to children with disabilities who have been voluntarily placed by their parents in private schools. These services are provided through an Individual Services Plan (“ISP”). Preschool students may or may not be entitled to such services, depending on the nature of the school in which they are enrolled.

The California Department of Education (“CDE”) recently issued revised guidance addressing whether preschool children with disabilities enrolled by their parents in private schools are entitled to equitable services pursuant to an ISP. Under California law, “private school students with disabilities” are defined as “children with disabilities enrolled by a parent in private schools or facilities that meet the definition of an ‘elementary school’ or ‘secondary school.’” (Cal. Ed. Code §56170.)  CDE’s guidance now aligns with 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,” and clarifies that parentally placed private school students with disabilities ages 3 to 5 years old are eligible for equitable services through an ISP if the private preschool or facility meets California’s definition of an “elementary school.” If not, the equitable service provisions do not apply to them.

The guidance acknowledges that California law does not have a single definition of “elementary school,” but states that kindergarten, including transitional kindergarten, is considered elementary education.  (Cal. Ed. Code §§ 48000(d), 46114(c), and 46115.) Accordingly, if a private preschool or facility offers not only preschool but also transitional kindergarten programs or higher, then parentally placed private school students with disabilities, including preschool students enrolled in that school or facility, are eligible to receive equitable services on an ISP.

This clarification may impact how LEAs calculate proportionate share expenditures and data reporting in the California Longitudinal Pupil Achievement Data System (“CALPADS”) for parentally placed private school preschoolers with disabilities. We recommend that school districts investigate whether private preschools or facilities in their jurisdiction could be considered an “elementary school” and consider the impact this might have on their proportionate share expenditures and data reporting in CALPADS.

If you have any questions about whether a student with disabilities is eligible to receive equitable services via an ISP, or whether a private preschool or facility meets the definition of an elementary school under California law, please contact your special education legal counsel for assistance.