Child lives in your district. Goes to private school in another district. Who has Child Find responsibility?

Misunderstanding the law can be costly.  A school district in California is facing liability for two years of a student’s private school tuition due to what appears to be a simple misunderstanding of the law pertaining to Child Find under IDEA.

The basic rule is that the district where the child lives is responsible for finding the child.  “Finding” under IDEA’s Child Find requirement is not as simple as finding in a game of hide and seek.  Child Find under IDEA means that the school district “identified, located, and evaluated” the child.  This applies to all students who reside in the district, even if they attend school elsewhere.

In this case the parents placed the child in a private, religious school for the 2014-15 school year.  In the spring of 2015 the mother sent a letter to the Bellflower USD where the family still lived.  The letter asked for an IEP meeting and an IEP for the 2015-16 school year. The student still lived in Bellflower but the private school was located in a neighboring district. The district refused to hold the meeting, believing that it was not legally responsible for doing so until the child re-enrolled in the district.  

That was a mistake.  I think when schools make this particular mistake it’s based on the belief that the parent has no intention of returning to the local public school. That was the district’s perception in this case, but the court noted that the facts did not support that view.  “In fact,” the court wrote, “K.L.’s parents’ letters to BUSD in 2015 and 2016 indicate they were still interested in a public school placement for K.L.”  The court noted “multiple requests” from the parents for an evaluation, an IEP Team meeting and an offer of a Free Appropriate Public Education.  The school’s failure to do this denied FAPE and meaningful parent participation.  The parents were entitled to tuition reimbursement for two years.   The religious nature of the private school did not, in the court’s view, render it an inappropriate placement.

Some of the confusion over this issue springs from a federal regulation that specifically applies to private school students: 34 CFR 300.131. That regulation imposes the Child Find duty on the district where the private school is located.  However, it does not relieve the resident district of its responsibility.  Thus there are some students who are supposed to be “found” twice—by the district where they live, and by the district where they attend a private school.   The “finding” is for different purposes.  The resident district has the duty to provide FAPE. The district where the private school is located has the duty to determine if the student is eligible for “proportioinate share” services.  The Commentary to the regulation makes this clear:

We recognize that there could be times when parents request that their parentally-placed child be evaluated by different LEAs if the child is attending a private school that is not in the LEA in which they reside. 

The Commentary goes on to say that “we do not encourage this practice,” but also “there is nothing in this part [of the regulations] that would prohibit” it. 

The case is Bellflower USD v. Lua, decided by the 9th Circuit in an unpublished opinion on October 26, 2020.  We found it on Special Ed Connection at 77 IDELR 181.


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