COMMONWEALTH OF VIRGINIA

DEPARTMENT OF EDUCATION

P.O. BOX 2120

RICHMOND, VIRGINIA 23218-2120

SUPTS. MEMO NO. 1

February 9, 2007

INTERPRETIVE

TO:

Division Superintendents

 

FROM:

Billy K. Cannaday, Jr.

Superintendent of Public Instruction

 

SUBJECT:

Parentally Placed Provisions Specific to

For-Profit and Nonprofit Private Schools

 

Under the provisions of the Individuals with Disabilities Education Improvement Act, 2004, and its implementing federal regulations of 2006, school divisions are required to meet certain mandates related to the educational needs of children with disabilities who are placed by their parents in private schools located in the school divisions. The federal regulations distinguish between for-profit and nonprofit private schools which impacts school divisions responsibilities in meeting child find and equitable services to this population.

 

The school divisions responsibility for children with disabilities enrolled by their parents in private schools is detailed at 300.130 300.144 of the new federal regulations governing special education. Section 300.130 states that parentally placed private school children with disabilities means children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school in 300.13 or secondary school in 300.36. The definitions of elementary school and secondary school, as found in the 2006 federal regulations, expanded the 1999 federal regulation language. The terms now include nonprofit language ( 300.16 for elementary school; 300.36 for secondary school). This language in the new federal regulations is consistent with the IDEA 2004, at 1412 (a)(10).

 

This means that each school division is responsible for child find and equitable services for children with disabilities who are placed by their parents in private schools located within the school divisions jurisdiction. However, the school division is responsible only for these children placed in private schools that are nonprofit. The school division is not responsible for the parentally-placed provisions for children with disabilities in private schools that are for-profit. As long as the child remains in a for-profit private school, neither the school division where the private school is located nor the division where the child resides has any responsibility for child find or equitable services.

 

In determining the for-profit/non profit status of the private schools in your division, you may want to consult with your NCLB office. Superintendents Memo, Administrative, No. 044, October 6, 2006, Survey of Private, Nonprofit Schools for Federal Program Participation, provided each school division with information on nonprofit status determinations. In the alternative, you may need to ask the private school for a copy of the IRS determination letter or other documentation on the nonprofit status.

 

Two additional factors may assist you in processing this issue.

 

(1) Preschoolers are included in this population. A private preschool or day care program is considered an elementary school if it meets the definition of elementary school, that is, a nonprofit that provides elementary instructional curriculum.

 

(2)         The definitions for elementary school and secondary school,

as contained in the 2006 federal regulations, also now include public charter schools. The nonprofit requirement also applies to these schools. The 9th Circuit Court of Appeals recently ruled that for-profit institutions are not entitled to funding under the IDEA and the Elementary and Secondary Education Act of 1965. Arizona State Board for Charter Schools v. Leona Group Arizona, LLC, 46 IDELR 153 (9th Circuit 2006). We know that the 9th Circuit is not controlling authority for Virginia and the other states in the 4th Circuit. However, the courts decision supports the same application of the federal law and regulations governing special education on this issue noted above.

 

If you have any questions about these requirements, please contact H. Douglas Cox, assistant superintendent for special education and student services at (804) 225-3252; Doug.Cox@doe.virginia.gov, or Judy Douglas, director of dispute resolution and administrative services, at (804) 225-2771; Judy.Douglas@doe.virginia.gov.

 

BKCJr/jd