Parents who have concerns about a child’s access to special education services can contact us to speak with an attorney free of charge.
Individuals with Disabilities Education Act (IDEA)
The federal Individuals with Disabilities Education Act or IDEA as well as New Hampshire state law require school districts to provide special education and related services for children with certain types of disabilities who, due to their disability, need specialized instruction and related services to receive an appropriate education. Under these laws, school districts must make a free appropriate public education (FAPE) in the least restrictive environment (LRE) available to eligible children.
Every child who is eligible under the IDEA receives specialized instruction and related services that are outlined in a plan, called an Individualized Education Program (IEP), that is individually designed to meet the unique needs of that student. The IEP is developed by the student’s IEP Team which includes the student’s parents or guardians and can include the student themself. Each IEP is unique to each student.
Once an IEP has been developed, the IEP team determines where the IEP can be implemented in order for the student to receive a FAPE in the least restrictive environment or LRE. Often, this will be in the student’s local public school.
However, a student whose IEP team determines that an out-of-district placement into a private or another public school is necessary to enable them to receive a FAPE, retains their rights under the IDEA. In such circumstances, the student’s local public school district or ‘sending district’ remains responsible for providing the student with the supports and services outlined in the student’s IEP.
This is not true for students whose parents choose to remove them from their resident public school and enroll them into a private school or homeschool them. When a student is removed from their public school and ‘parentally-placed’ into another setting, neither the student’s public school nor their private school has an obligation to provide that child with a FAPE or implement their IEP.
School districts do set aside a small amount of federal IDEA funding to provide ‘equitable services’ to some students with disabilities who are parentally-placed out of their local public school. However, the school district has discretion to decide what services may be made available and which students will receive those services. This means that a student with disabilities who is parentally-placed into a private school, no longer has a legal right to have the special education supports and services contained in their IEP provided (see CFR 34 § 300.137 -138).
For more information on special education visit our special education page at drcnh.org/issue-areas/childrens-issues/education/special-education
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973 (“Section 504”) is a federal law that prohibits discrimination based on disability in programs and activities (whether public, private, or religious) that accept federal funds. Children with disabilities other than those set out in the IDEA but who still need accommodations, modifications, or services in order to fully participate in school, may have the right to what is known as a “504 Plan.” 504 plans are generally less detailed than IEPs, but they still need to be individually designed to provide each student with a FAPE.
Note that Section 504 covers all or nearly all public schools as well as many private and religious schools. Section 504 applies to private and religious schools if they participate in federally funded free or reduced breakfast and lunch programs or accept federal funds for various things like special education, serving at-risk students, textbooks and supplies, and professional development programs for teachers and staff. Many private and religious schools, including many Catholic schools, accept federal funds and therefore are covered under Section 504.
Americans with Disabilities Act (ADA)
The ADA is a broad civil rights law that protects people with disabilities from discrimination in a wide range of settings including public and private schools (but not religious schools*). Although the ADA does not have provisions specifically related to education, parents, students, staff, and visitors with qualifying disabilities can request accommodations under the ADA in order to have equal access to school activities. For example, schools must be physically accessible, and provide interpreters and accessible materials for those who are deaf, hard of hearing, blind, or low vision.
* While the ADA does not protect students with disabilities in religious schools, another disability antidiscrimination law, Section 504 of the Rehabilitation Act (discussed above), does cover some but not all religious schools.
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Wrightslaw: Key Differences Between Section 504 and IDEA) )