(1) PRIVATE SCHOOL ELIGIBILITY AND OBLIGATIONS.–A private school participating in an educational scholarship program established pursuant to this chapter must be a private school as defined in s. 1002.01(2) in this state, be registered, and be in compliance with all requirements of this section in addition to private school requirements outlined in s. 1002.42, specific requirements identified within respective scholarship program laws, and other provisions of Florida law that apply to private schools, and must:
(a) Comply with the antidiscrimination provisions of 42 U.S.C. s. 2000d.
Terms Used In Florida Statutes 1002.421
- Arrest: Taking physical custody of a person by lawful authority.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Contract: A legal written agreement that becomes binding when signed.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Felony: A crime carrying a penalty of more than a year in prison.
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Forgery: The fraudulent signing or alteration of another's name to an instrument such as a deed, mortgage, or check. The intent of the forgery is to deceive or defraud. Source: OCC
- Fraud: Intentional deception resulting in injury to another.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
- person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Subpoena: A command to a witness to appear and give testimony.
- Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) Notify the department of its intent to participate in a scholarship program.
(c) Notify the department of any change in the school’s name, school director, mailing address, or physical location within 15 days after the change.
(d) Provide to the department or scholarship-funding organization all documentation required for a student’s participation, including the private school’s and student’s individual fee schedule, and attendance verification as required by the department or scholarship-funding organization, prior to scholarship payment.
(e) Annually complete and submit to the department a notarized scholarship compliance statement certifying that all school employees and contracted personnel with direct student contact have undergone background screening pursuant to s. 943.0542 and have met the screening standards as provided in s. 435.04.
(f) Demonstrate fiscal soundness and accountability by:
1. Being in operation for at least 3 school years or obtaining a surety bond or letter of credit for the amount equal to the scholarship funds for any quarter and filing the surety bond or letter of credit with the department.
2. Requiring the parent of each scholarship student to personally restrictively endorse the scholarship warrant to the school or to approve a funds transfer before any funds are deposited for a student. The school may not act as attorney in fact for the parent of a scholarship student under the authority of a power of attorney executed by such parent, or under any other authority, to endorse a scholarship warrant or approve a funds transfer on behalf of such parent.
(g) Meet applicable state and local health, safety, and welfare laws, codes, and rules, including:
2. Building safety.
(h) Employ or contract with teachers who hold baccalaureate or higher degrees, have at least 3 years of teaching experience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide instruction in subjects taught.
(i) Maintain a physical location in the state at which each student has regular and direct contact with teachers.
(j) Publish on the school’s website, or provide in a written format, information for parents regarding the school, including, but not limited to, programs, services, and the qualifications of classroom teachers.
(k) At a minimum, provide the parent of each scholarship student with a written explanation of the student’s progress on a quarterly basis.
(l) Cooperate with a student whose parent chooses to participate in the statewide assessments pursuant to s. 1008.22.
(m) Require each employee and contracted personnel with direct student contact, upon employment or engagement to provide services, to undergo a state and national background screening, pursuant to s. 943.0542, by electronically filing with the Department of Law Enforcement a complete set of fingerprints taken by an authorized law enforcement agency or an employee of the private school, a school district, or a private company who is trained to take fingerprints and deny employment to or terminate an employee if he or she fails to meet the screening standards under s. 435.04. Results of the screening shall be provided to the participating private school. For purposes of this paragraph:
1. An “employee or contracted personnel with direct student contact” means any employee or contracted personnel who has unsupervised access to a scholarship student for whom the private school is responsible.
2. The costs of fingerprinting and the background check shall not be borne by the state.
3. Continued employment of an employee or contracted personnel after notification that he or she has failed the background screening under this paragraph shall cause a private school to be ineligible for participation in a scholarship program.
4. An employee or contracted personnel holding a valid Florida teaching certificate who has been fingerprinted pursuant to s. 1012.32 is not required to comply with the provisions of this paragraph.
5. All fingerprints submitted to the Department of Law Enforcement as required by this section shall be retained by the Department of Law Enforcement in a manner provided by rule and entered in the statewide automated biometric identification system authorized by s. 943.05(2)(b). Such fingerprints shall thereafter be available for all purposes and uses authorized for arrest fingerprints entered in the statewide automated biometric identification system pursuant to s. 943.051.
6. The Department of Law Enforcement shall search all arrest fingerprints received under s. 943.051 against the fingerprints retained in the statewide automated biometric identification system under subparagraph 5. Any arrest record that is identified with the retained fingerprints of a person subject to the background screening under this section shall be reported to the employing school with which the person is affiliated. Each private school participating in a scholarship program is required to participate in this search process by informing the Department of Law Enforcement of any change in the employment or contractual status of its personnel whose fingerprints are retained under subparagraph 5. The Department of Law Enforcement shall adopt a rule setting the amount of the annual fee to be imposed upon each private school for performing these searches and establishing the procedures for the retention of private school employee and contracted personnel fingerprints and the dissemination of search results. The fee may be borne by the private school or the person fingerprinted.
7. Employees and contracted personnel whose fingerprints are not retained by the Department of Law Enforcement under subparagraphs 5. and 6. are required to be refingerprinted and must meet state and national background screening requirements upon reemployment or reengagement to provide services in order to comply with the requirements of this section.
8. Every 5 years following employment or engagement to provide services with a private school, employees or contracted personnel required to be screened under this section must meet screening standards under s. 435.04, at which time the private school shall request the Department of Law Enforcement to forward the fingerprints to the Federal Bureau of Investigation for national processing. If the fingerprints of employees or contracted personnel are not retained by the Department of Law Enforcement under subparagraph 5., employees and contracted personnel must electronically file a complete set of fingerprints with the Department of Law Enforcement. Upon submission of fingerprints for this purpose, the private school shall request that the Department of Law Enforcement forward the fingerprints to the Federal Bureau of Investigation for national processing, and the fingerprints shall be retained by the Department of Law Enforcement under subparagraph 5.
(n) Adopt policies establishing standards of ethical conduct for instructional personnel and school administrators. The policies must require all instructional personnel and school administrators, as defined in s. 1012.01, to complete training on the standards; establish the duty of instructional personnel and school administrators to report, and procedures for reporting, alleged misconduct by other instructional personnel and school administrators which affects the health, safety, or welfare of a student; and include an explanation of the liability protections provided under ss. 39.203 and 768.095. A private school, or any of its employees, may not enter into a confidentiality agreement regarding terminated or dismissed instructional personnel or school administrators, or personnel or administrators who resign in lieu of termination, based in whole or in part on misconduct that affects the health, safety, or welfare of a student, and may not provide the instructional personnel or school administrators with employment references or discuss the personnel’s or administrators’ performance with prospective employers in another educational setting, without disclosing the personnel’s or administrators’ misconduct. Any part of an agreement or contract that has the purpose or effect of concealing misconduct by instructional personnel or school administrators which affects the health, safety, or welfare of a student is void, is contrary to public policy, and may not be enforced.
(o) Before employing instructional personnel or school administrators in any position that requires direct contact with students, conduct employment history checks of each of the personnel’s or administrators’ previous employers, screen the personnel or administrators through use of the educator screening tools described in s. 1001.10(5), and document the findings. If unable to contact a previous employer, the private school must document efforts to contact the employer.
(p) Require each owner or operator of the private school, prior to employment or engagement to provide services, to undergo level 2 background screening as provided under chapter 435. For purposes of this paragraph, the term “owner or operator” means an owner, operator, superintendent, or principal of, or a person with equivalent decisionmaking authority over, a private school participating in a scholarship program established pursuant to this chapter. The fingerprints for the background screening must be electronically submitted to the Department of Law Enforcement and may be taken by an authorized law enforcement agency or a private company who is trained to take fingerprints. However, the complete set of fingerprints of an owner or operator may not be taken by the owner or operator. The owner or operator shall provide a copy of the results of the state and national criminal history check to the Department of Education. The cost of the background screening may be borne by the owner or operator.
1. Every 5 years following employment or engagement to provide services, each owner or operator must meet level 2 screening standards as described in s. 435.04, at which time the owner or operator shall request the Department of Law Enforcement to forward the fingerprints to the Federal Bureau of Investigation for level 2 screening. If the fingerprints of an owner or operator are not retained by the Department of Law Enforcement under subparagraph 2., the owner or operator must electronically file a complete set of fingerprints with the Department of Law Enforcement. Upon submission of fingerprints for this purpose, the owner or operator shall request that the Department of Law Enforcement forward the fingerprints to the Federal Bureau of Investigation for level 2 screening, and the fingerprints shall be retained by the Department of Law Enforcement under subparagraph 2.
2. Fingerprints submitted to the Department of Law Enforcement as required by this paragraph must be retained by the Department of Law Enforcement in a manner approved by rule and entered in the statewide automated biometric identification system authorized by s. 943.05(2)(b). The fingerprints must thereafter be available for all purposes and uses authorized for arrest fingerprints entered in the statewide automated biometric identification system pursuant to s. 943.051.
3. The Department of Law Enforcement shall search all arrest fingerprints received under s. 943.051 against the fingerprints retained in the statewide automated biometric identification system under subparagraph 2. Any arrest record that is identified with an owner’s or operator’s fingerprints must be reported to the owner or operator, who must report to the Department of Education. Any costs associated with the search shall be borne by the owner or operator.
4. An owner or operator who fails the level 2 background screening is not eligible to participate in a scholarship program under this chapter.
5. In addition to the offenses listed in s. 435.04, a person required to undergo background screening pursuant to this part or authorizing statutes may not have an arrest awaiting final disposition for, must not have been found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, and must not have been adjudicated delinquent for, and the record must not have been sealed or expunged for, any of the following offenses or any similar offense of another jurisdiction:
a. Any authorizing statutes, if the offense was a felony.
b. This chapter, if the offense was a felony.
c. Section 409.920, relating to Medicaid provider fraud.
d. Section 409.9201, relating to Medicaid fraud.
e. Section 741.28, relating to domestic violence.
f. Section 817.034, relating to fraudulent acts through mail, wire, radio, electromagnetic, photoelectronic, or photooptical systems.
g. Section 817.234, relating to false and fraudulent insurance claims.
h. Section 817.505, relating to patient brokering.
i. Section 817.568, relating to criminal use of personal identification information.
j. Section 817.60, relating to obtaining a credit card through fraudulent means.
k. Section 817.61, relating to fraudulent use of credit cards, if the offense was a felony.
l. Section 831.01, relating to forgery.
m. Section 831.02, relating to uttering forged instruments.
n. Section 831.07, relating to forging bank bills, checks, drafts, or promissory notes.
o. Section 831.09, relating to uttering forged bank bills, checks, drafts, or promissory notes.
p. Section 831.30, relating to fraud in obtaining medicinal drugs.
q. Section 831.31, relating to the sale, manufacture, delivery, or possession with the intent to sell, manufacture, or deliver any counterfeit controlled substance, if the offense was a felony.
6. At least 30 calendar days before a transfer of ownership of a private school, the owner or operator shall notify the parent of each scholarship student.
7. The owner or operator of a private school that has been deemed ineligible to participate in a scholarship program pursuant to this chapter may not transfer ownership or management authority of the school to a relative in order to participate in a scholarship program as the same school or a new school. For purposes of this subparagraph, the term “relative” means father, mother, son, daughter, grandfather, grandmother, brother, sister, uncle, aunt, cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, or half-sister.
(q) Provide a report from an independent certified public accountant who performs the agreed-upon procedures developed pursuant to s. 1002.395(6)(o) if the private school receives more than $250,000 in funds from scholarships awarded under this chapter in a state fiscal year. A private school subject to this subsection must annually submit the report by September 15 to the scholarship-funding organization that awarded the majority of the school’s scholarship funds. However, a school that receives more than $250,000 in scholarship funds only through the John M. McKay Scholarship for Students with Disabilities Program pursuant to s. 1002.39 must submit the annual report by September 15 to the department. The agreed-upon procedures must be conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants.
The department shall suspend the payment of funds to a private school that knowingly fails to comply with this subsection, and shall prohibit the school from enrolling new scholarship students, for 1 fiscal year and until the school complies. If a private school fails to meet the requirements of this subsection or has consecutive years of material exceptions listed in the report required under paragraph (q), the commissioner may determine that the private school is ineligible to participate in a scholarship program.
(2) DEPARTMENT OF EDUCATION OBLIGATIONS.–
(a) The Department of Education shall:
1. Annually verify the eligibility of private schools that meet the requirements of this section, specific requirements identified within respective scholarship program laws, and other provisions of state law that apply to private schools.
2. Establish a toll-free hotline that provides parents and private schools with information on participation in the scholarship programs.
3. Establish a process by which individuals may notify the department of any violation by a parent, private school, or school district of state laws relating to program participation. If the department has reasonable cause to believe that a violation of this section or any rule adopted by the State Board of Education has occurred, it shall conduct an inquiry or make a referral to the appropriate agency for an investigation. A department inquiry is not subject to the requirements of chapter 120.
4. Require an annual, notarized, sworn compliance statement from participating private schools certifying compliance with state laws, and retain such records.
5. Coordinate with the entities conducting the health inspection for a private school to obtain copies of the inspection reports.
6. Conduct site visits to private schools entering a scholarship program for the first time. Beginning with the 2019-2020 school year, a private school is not eligible to receive scholarship payments until a satisfactory site visit has been conducted and the school is in compliance with all other requirements of this section.
7. Coordinate with the State Fire Marshal to obtain access to fire inspection reports for private schools. The authority conducting the fire safety inspection shall certify to the State Fire Marshal that the annual inspection has been completed and that the school is in full compliance. The certification shall be made electronically or by such other means as directed by the State Fire Marshal.
8. Upon the request of a participating private school authorized to administer statewide assessments, provide at no cost to the school the statewide assessments administered under s. 1008.22 and any related materials for administering the assessments. Students at a private school may be assessed using the statewide assessments if the addition of those students and the school does not cause the state to exceed its contractual caps for the number of students tested and the number of testing sites. The state shall provide the same materials and support to a private school that it provides to a public school. A private school that chooses to administer statewide assessments under s. 1008.22 shall follow the requirements set forth in ss. 1008.22 and 1008.24, rules adopted by the State Board of Education to implement those sections, and district-level testing policies established by the district school board.
(b) The department may conduct site visits to any private school participating in a scholarship program pursuant to this chapter that has received a complaint about a violation of state law or state board rule pursuant to subparagraph (a)3. or has received a notice of noncompliance or a notice of proposed action within the previous 2 years.
(c) Annually, by December 15, the department shall report to the Governor, the President of the Senate, and the Speaker of the House of Representatives its actions in implementing accountability in the scholarship programs under this section, any substantiated allegations or violations of law or rule by an eligible private school under this section, and the corrective action taken.
(3) COMMISSIONER OF EDUCATION AUTHORITY AND OBLIGATIONS.–The Commissioner of Education:
(a) Shall deny, suspend, or revoke a private school’s participation in a scholarship program if it is determined that the private school has failed to comply with this section or exhibits a previous pattern of failure to comply. However, if the noncompliance is correctable within a reasonable amount of time, not to exceed 45 days, and if the health, safety, or welfare of the students is not threatened, the commissioner may issue a notice of noncompliance which provides the private school with a timeframe within which to provide evidence of compliance before taking action to suspend or revoke the private school’s participation in the scholarship program.
(b) May deny, suspend, or revoke a private school’s participation in a scholarship program if the commissioner determines that an owner or operator of the private school is operating or has operated an educational institution in this state or in another state or jurisdiction in a manner contrary to the health, safety, or welfare of the public or if the owner or operator has exhibited a previous pattern of failure to comply with this section or specific requirements identified within respective scholarship program laws. For purposes of this subsection, the term “owner or operator” has the same meaning as provided in paragraph (1)(p).
(c)1. In making such a determination, may consider factors that include, but are not limited to, acts or omissions by an owner or operator which led to a previous denial, suspension, or revocation of participation in a state or federal education scholarship program; an owner’s or operator’s failure to reimburse the department or scholarship-funding organization for scholarship funds improperly received or retained by a school; the imposition of a prior criminal sanction related to an owner’s or operator’s management or operation of an educational institution; the imposition of a civil fine or administrative fine, license revocation or suspension, or program eligibility suspension, termination, or revocation related to an owner’s or operator’s management or operation of an educational institution; or other types of criminal proceedings in which an owner or operator was found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense involving fraud, deceit, dishonesty, or moral turpitude.
2. The commissioner’s determination is subject to the following:
a. If the commissioner intends to deny, suspend, or revoke a private school’s participation in the scholarship program, the department shall notify the private school of such proposed action in writing by certified mail and regular mail to the private school’s address of record with the department. The notification shall include the reasons for the proposed action and notice of the timelines and procedures set forth in this paragraph.
b. The private school that is adversely affected by the proposed action shall have 15 days after receipt of the notice of proposed action to file with the department’s agency clerk a request for a proceeding pursuant to ss. 120.569 and 120.57. If the private school is entitled to a hearing under s. 120.57(1), the department shall forward the request to the Division of Administrative Hearings.
c. Upon receipt of a request referred pursuant to this subparagraph, the director of the Division of Administrative Hearings shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written request by the division and enter a recommended order within 30 days after the hearing or within 30 days after receipt of the hearing transcript, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days after the entry of a recommended order. The provisions of this sub-subparagraph may be waived upon stipulation by all parties.
(d) May immediately suspend payment of scholarship funds if it is determined that there is probable cause to believe that there is:
1. An imminent threat to the health, safety, or welfare of the students;
2. A previous pattern of failure to comply with this section; or
3. Fraudulent activity on the part of the private school. Notwithstanding s. 1002.22, in incidents of alleged fraudulent activity pursuant to this section, the department’s Office of Inspector General is authorized to release personally identifiable records or reports of students to the following persons or organizations:
a. A court of competent jurisdiction in compliance with an order of that court or the attorney of record in accordance with a lawfully issued subpoena, consistent with the Family Educational Rights and Privacy Act, 20 U.S.C. s. 1232g.
b. A person or entity authorized by a court of competent jurisdiction in compliance with an order of that court or the attorney of record pursuant to a lawfully issued subpoena, consistent with the Family Educational Rights and Privacy Act, 20 U.S.C. s. 1232g.
c. Any person, entity, or authority issuing a subpoena for law enforcement purposes when the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed, consistent with the Family Educational Rights and Privacy Act, 20 U.S.C. s. 1232g, and 34 C.F.R. s. 99.31.
The commissioner’s order suspending payment pursuant to this paragraph may be appealed pursuant to the same procedures and timelines as the notice of proposed action set forth in subparagraph (c)2.