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IDEA Update

Congress Approves IDEA 2004

November 19, 2004--The House and Senate today passed the long-awaited reauthorization of the Individuals with Disabilities Education Act (IDEA 2004), which includes some important improvements relating to services for children with special needs in private schools. The House approved the bipartisan bill 397 to 3, and the Senate did so by voice vote. President Bush is expected to sign the bill soon. The bill number is HR 1350, and the final version of the legislation is contained in the conference report on HR 1350 (H. Rept. 108-779). Download CAPE's analysis of the new law (PDF), including the legislative language relating to students placed by their parents in private schools and a side-by-side comparison of the new law with its predecessor.


How will the latest overhaul of the Individuals with Disabilities Education Act (IDEA 2004) affect students in private schools? In some respects the new law’s effect will be negligible, but in others, noteworthy.

Overall, IDEA 2004 treats services to children placed by their parents in private schools essentially the same way the old law did. School districts are obliged to provide private school children who have special needs with services equal to a proportionate share of a school district’s IDEA funds. Thus, if private schools located in a district enroll 10 percent of all the students in a district with special needs, the district is obliged to spend 10 percent of its IDEA allocation on services for those children. (In the old law the target private school population was students residing in the district; in the new law it is students attending private schools in the district.) Because no individual child in a private school is entitled to any particular services, the determination of what students are served, what services they receive, and how, when, where, and by whom such services are provided are all matters of consultation between public school officials, private school officials, and parents of the students involved.

But while essentially retaining the existing approach, the new IDEA includes important improvements in provisions relating to children in private schools. A list of the principal improvements is provided below.

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Principal Improvements in IDEA 2004 for Students in Private Schools

Recording and Reporting

  • Requires school districts to record and report to the state education agency the number of private school children evaluated, the number determined to be children with disabilities, and the number served. (Sec. 612(a)(10)(A)(i)(V))

Child Find

  • Changes the target child find and service population from children residing in the district to children attending private schools within the district. ((Sec. 612(a)(10)(A)(i))
  • Incorporates within the statute the current regulatory requirement that a school district’s child find activities for private school children be comparable to those for public school children. (Sec. 612(a)(10)(A)(ii))
  • Incorporates within the statute the current regulatory requirement that expenditures for child find activities not be considered in determining whether a school district has met its "proportionate share" obligation to private school children. (Sec. 612(a)(10)(A)(ii)(IV))
  • Upgrades the regulatory requirement for consultation on child find to "timely and meaningful" consultation. (Sec. 612(a)(10)(A)(iii)(I))


  • Incorporates within the statute current regulatory requirements that school districts consult with representatives of private school children in carrying out various activities relating to identifying and serving children in private schools, and substantially strengthens those requirements. (Sec. 612(a)(10)(A)(iii))
  • Provides an expanded list of items around which there is to be consultation. (Sec. 612(a)(10)(A)(iii))
  • Requires school districts that disagree with the views of private school officials, on the provision of services or the types of services, to provide private school officials a written explanation of the reasons why the district chose not to provide services directly or through a contract. (Sec. 612(a)(10)(A)(iii)(V))
  • Requires school districts to obtain a written affirmation from private school officials that timely and meaningful consultation has occurred. (Sec. 612(a)(10)(A)(iv))

Third-Party Contracts

  • Clarifies that school districts may provide services to private school children directly or through contracts with public and private agencies, organizations, and institutions. (Sec. 612(a)(10)(A)(vi)(I))


  • Specifies that state and local funds for special education services to children in private schools may supplement but not supplant the federal funds required to be spent under IDEA. (Sec. 612(a)(10)(A)(i)(IV))

Complaint Procedure

  • Incorporates, clarifies, and strengthens regulatory procedures relating to filing complaints. (Sec. 612(a)(10)(A)(v))


  • Requires the U.S. Department of Education to arrange for services to private school children if a state or district is unwilling, or substantially fails, to provide for the equitable participation of private school children. (Sec. 612(f)(1))

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USDE Releases IDEA Regulations

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August 3, 2006--The U.S. Department of Education today released the much-anticipated final regulations to implement the Individuals with Disabilities Education Act as amended in 2004 (IDEA 2004).  The regulations, available in unofficial form on the department's Web site, are scheduled for official publication in the Federal Register on August 14 and will take effect 60 days thereafter.

"I am pleased that the final regulations were completed before the new school year begins." said U.S. Secretary of Education Margaret Spellings. "This gives parents, teachers and administrators time to become familiar with the changes prior to the start of the instructional year."

The regulations include provisions covering services for children placed by their parents in private schools.  Download CAPE's side-by-side comparison (PDF) of the principal private school provisions in the new and old regulations. 

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