Special Education Update

District Obligations to Students with Disabilities Under the CHOOSE Act

Leslie A. Allen, Esq., David “Butch” Sargent, Esq., and Julie J. Weatherly, Esq., Resolutions in Special Education, Inc.

Effective SY 2025-26, the Creating Hope & Opportunity for Our Students’ Education Act of 2024 (“CHOOSE Act”) establishes Education Savings Accounts (“ESAs”) to fund qualifying educational expenses for private school and homeschool services. Generally, eligible expenses cover various private, online, and homeschool options, as well as public school offerings that charge tuition.

Qualifying educational expenses also include services for IDEA and 504-covered students with disabilities (“SWDs”) from a licensed or accredited practitioner, effectively allowing parents to use ESA funds to pay for private services for SWDs, as well as for “contracted services provided by a public school district.” Certain income caps apply to families for the first two school years ESAs are available. Beginning in SY 2027-2028, any family is eligible without income limitations, and, every year, the first 500 slots for ESAs are reserved for SWDs regardless of income.

Regarding district obligations to SWDs participating in the CHOOSE Act program, Section 3(h) of the Act provides that a “specialneeds student” remains eligible to receive special education or similar services from the resident school district “as provided by federal or state law.” The CHOOSE Act does not specify, however, which requirements of federal law and which district obligations continue.

District IDEA Obligations to PPPSS Attending Private Schools Located within the District

The CHOOSE Act treats “special-needs students” as parentally placed private school students (“PPPSS”) under IDEA. For this purpose, PPPSS are SWDs whose parents have chosen to place them in a private school but for whom there is no dispute about FAPE to the student.

IDEA obligates districts to fulfill certain child find requirements to PPPSS attending private schools within their jurisdiction whether or not a student is a resident. In doing so, non-resident districts where private schools are located must undertake child find activities similar to activities for resident students and within a comparable timeframe. Districts where private schools are located must also reevaluate PPPSS in accordance with IDEA’s reevaluation requirements at least once every three years, where a parent or teacher requests an evaluation, or “when warranted.”

Districts where the private schools are located additionally must maintain an accurate count of the number of IDEA-eligible students enrolled in private schools within the district and calculate a proportionate share of IDEA Part B funds to spend annually for “equitable services” to PPPSS with disabilities. Further, the district where the private school is located is responsible for maintaining and reporting to ALSDE the number of PPPSS evaluated, the number determined IDEA-eligible, and the number receiving equitable services from the district.

While districts where private schools are located have no obligation to offer FAPE or IEPs to PPPSS, they must spend a proportionate share of Part B funds to provide “equitable services” to them, which could include direct and/or indirect services. Equitable services offered to PPPSS by districts are identified in the district’s LEA Plan and, in Alabama, traditionally include the provision of speech only, speech-language only, or speech-language and OT. Equitable services for individual PPPSS must be documented in a “Services Plan.”

District IDEA Obligations to PPPSS who Reside within the District

Under IDEA, the district where a student resides is always responsible for making FAPE available to its SWDs and conducting child find activities, such as evaluations for special education services, even if a resident student is placed in a private school outside the district. Thus, it is possible that parents of PPPSS could request evaluations from the district where the private school is located and from the resident district. In that circumstance, both districts would need to conduct evaluations if either district suspects an IDEA disability and need for special education, although the purpose of the evaluations are different. The resident district must evaluate to make FAPE available to the student. The district where the private school is located must evaluate to determine whether the student is eligible for equitable services.

For IDEA-eligible PPPSS, the resident district is required to make an offer of FAPE (and provide it if the student is enrolled), unless the parent makes clear their intent to keep the student in the private school. Once the resident district makes FAPE available, if the parent makes clear the intention not to accept that offer and keep the student in a private school, the resident district is not obligated to contact the parent to develop an IEP for the child for the following year or thereafter. If a parent accepts the resident district’s offer of FAPE and enrolls the child, which parents can do at any time, the resident district must make FAPE available by developing an IEP for the student.

District Obligations to 504 Students

“Special-needs students” under the CHOOSE Act also include students who have 504 Plans. Although 504 includes a child find requirement similar to IDEA’s for resident students, it provides nothing requiring services for PPPSS. The resident district must fulfill its 504 child find obligation to evaluate PPPSS under 504 if there is reason to believe a student has a disability and need for accommodations. However, neither a resident nor non-resident district would be required to provide “equitable services” or a “services plan,” because 504 contains no such provisions for PPPSS. Obviously, though, the resident district would make “504 FAPE” available to 504-eligible PPPSS if a parent requests an evaluation and returns a student to public school.

District Obligations to Homeschool Students

Whether homeschool students are considered PPPSS depends upon state law. While the child find obligation continues to fall on resident districts, students in Alabama who are homeschooled are not entitled to any services unless the homeschool is a private school registered with ALSDE. To our knowledge, no homeschool programs are currently registered as private schools.