Session 1 – Getting to Yes: How to Ensure Effective Consultation

Under federal equitable services requirements, an online or virtual nonpublic (private) school is treated as a school only if it meets the definition of an elementary or secondary school under applicable federal law (i.e., it is a nonprofit profit and provides elementary or secondary education, as determined under state law). If a virtual/online nonpublic school meets that definition, the state must determine which public school district (LEA) is responsible for providing equitable services.

For equitable services under Title I, Part A of the Elementary and Secondary Education Act of 1965 (ESEA), the LEA in which an eligible private school student resides must provide equitable services. As a result, the virtual school’s location does not impact the provision of equitable services. In contrast, however, under other ESEA programs (i.e., Title VIII-covered programs) and Part B of the Individuals with Disabilities Education Act (IDEA), the LEA where a private school is located is responsible for meeting equitable services requirements.

Because virtual/online nonpublic schools often do not have a single physical location where students are educated, states have flexibility in how they assign responsibility. One reasonable approach is to assign responsibility to the LEA where each student is physically located when participating in instruction (often the student’s home address). As a result, different LEAs may be responsible for different students enrolled in the same virtual/online nonpublic school.

States should have a clear, documented rationale for their approach and may involve LEAs and virtual/online nonpublic schools in developing and implementing these policies.

What this means in practice:

• States should clearly define how responsibility for providing equitable services to students enrolled in virtual/online nonpublic schools is determined for ESEA Title VIII-covered programs and Part B of the IDEA.

• LEAs may be responsible for serving virtual/online nonpublic school students who live within their geographic boundaries.

• Virtual/online nonpublic schools meeting the definition of an elementary or secondary school should be included in equitable services consultation processes.

• States and LEAs should document their approach and apply it consistently.

• Families should be able to identify which LEA is responsible for a particular student’s services.

• LEAs and virtual/online nonpublic schools should contact their State education agency to learn the State’s specific policies and procedures for assigning responsibility and conducting consultation.

This information is based on prior guidance from the U.S. Department of Education. Accordingly, the interpretation may change and should not be considered legally binding.

No. If an LEA is not serving any high schools, then there are no high school students residing in a Title I public school attendance area. As a result, no funds would be generated to serve students in private high schools and no students in those schools would be eligible for services. Thus, there would be no need to consult with private high schools if the LEA is not serving public high schools.

No. Districts are not required by federal law to use or send an “Intent to Participate” form. These forms are optional tools that some districts choose to use to help identify which private schools are interested in receiving equitable services under one or more ESEA programs.

While an Intent to Participate form can be a helpful way to organize outreach and document communication, the legal requirement is that districts engage in timely and meaningful consultation with private school officials. How a district initiates that consultation may vary and does not require a specific form.

An LEA may set a reasonable deadline for private school officials to indicate whether they are interested in receiving equitable services. What is “reasonable” depends on the circumstances, but the deadline should be established in a way that supports timely and meaningful consultation rather than cutting it off.

A reasonable deadline should:

• Take into account private school calendars and operational schedules, including holidays and school breaks.

• Be communicated clearly and in advance, with enough detail for private school officials to understand what action is required.

• Provide adequate time for private school officials to review information, ask questions, and respond thoughtfully.

• Clearly explain any potential consequences of missing the deadline, such as delays in planning or challenges in allocating services.

Importantly, setting a deadline does not relieve the LEA of its obligation to engage in timely and meaningful consultation. Deadlines should function as planning tools, not barriers to participation, and LEAs should remain flexible where circumstances warrant, especially when private schools have made good-faith efforts to engage.