Sent to all SPED Directors from John Eisenberg on June 27, 2013
In 2011, the Virginia Department of Education’s (VDOE) Division of Special Education and
Student Services issued its Frequently Asked Question 014-11, which addressed the
responsibility of a school division for FAPE when a student is placed in a residential facility for
non-educational reasons. In that our office continues to receive questions on the topic, we are
issuing the attached follow-up guidance.
STUDENTS WITH DISABILITIES PLACED IN RESIDENTIAL FACILITIES
FOR NON-EDUCATIONAL REASONS: THE LEGAL REQUIREMENTS AND BEST PRACTICE
In the late 1990s and early 2000s, decisions were issued by the Office of Civil Rights within the
United States Department of Education and by Virginia special education due process hearing
officers relating to the right to a free appropriate public education (FAPE) for students with
disabilities in Virginia who had been placed by their parents in facilities, such as long-stay
nursing homes and residential treatment centers, for non-educational reasons. Each of these
decisions concluded that the fact that the student had a medical or mental health issue that
required placement in a hospital or nursing home setting should not deprive them of the right
to FAPE. These decisions went on to conclude that the school division responsible for providing
FAPE is the division where the student’s parents reside. This concept was subsequently
incorporated into the Regulations Governing Special Education Programs for Children with
Disabilities in Virginia, effective January 25, 2010 (the Virginia Regulations) at 8 VAC 20-8130.E.3. (See also 8 VAC 20-81-30.B.9.) In 2011, the Virginia Department of Education’s (VDOE)
Division of Special Education and Student Services issued its Frequently Asked Question 014-11,
which reiterated this position. In that the VDOE continues to receive questions on this topic, we
are issuing this follow-up guidance. In contrast to the situation in which a parent places a
student in a private school for educational reasons, when students are placed by parents in a
residential facility due to non-educational and often emergency factors, such as extreme
behavioral, mental health, medical or substance abuse crises, the parents have not made a
decision to waive FAPE. While this placement does not obligate a school division to use the
educational program that may be in place at the residential facility, the student’s Individualized
Education Program (IEP) team must determine how the student will receive the services
necessary for FAPE and to allow the student to access the general curriculum. This
determination must be made without unreasonable delay. Options that may be available to the
IEP team might include: contracting with the local school division for a service provider; sending
an itinerant teacher to provide instruction to the student; or, using the facility’s educational
program. Any unreasonable delay may subject the school division to the obligation to provide
compensatory services to the student. Complete guidance regarding the steps an IEP team
should take in considering the needs of a student in such a placement is provided in FAQ 014-11
at:
http://www.doe.virginia.gov/special_ed/regulations/state/faq_implementing_regulations/201
1/014-11_parent_placement_of_student_residential.shtml.
While not required by regulation, best practice suggests that the IEP team secure the
participation of a representative of the residential facility if the parent has provided a release.
This serves several purposes. The representative may be necessary to provide information
regarding the student’s medical or mental health needs that could affect the student’s ability to
access services. In addition, the representative can provide information about the nature of the
educational program offered by the facility, so that it can be fully considered. Finally, the
representative can provide input on the daily routine of the facility so that educational services,
if provided by the local school division or an itinerant teacher, can be provided at a time and
place least disruptive to the student’s treatment. The school division and the residential facility
share the ultimate goal of returning the student to family, school and community. By working
with the facility, the school division can assist in ensuring that the student’s education is
disrupted as little as possible, making the transition back to school easier, and giving the
student a better chance for a successful outcome.
Any questions regarding this should be directed to Dr. Sandra Ruffin, Director of Federal
Program Monitoring at (804) 225-2768 or by E-mail at Sandra.Ruffin@doe.virginia.gov.