Changes to Virginia SPED Regulations

The Commonwealth of Virginia is proposing changes to the Virginia special education regulations- dangerous changes that threaten to exclude parents from important parts of the process. With the new changes, children above the age 5 will not be able to be categorized as "developmentally delayed" and services can be terminated without parent consent. These changes being made under the excuse of complying with with IDEA... but in fact, they go directly against the purpose of including parents and serving children with disabilities based on individual need instead of diagnosis!

Some months ago, parent organizations in Northern Virginia got together and put together comments to protest the changes. They invited parents to use their comments as a framework- or even just change "we" to "I"- and send them in to voice our protest. The public comment period ends June 30.

Please check out my links above, and then let the Virginia Department of Education know how you feel about these changes to Virginia law:
Email: ReviseSpedRegs@doe.virginia.gov
Address: Special Education Regulations Revision Process
Office of Dispute Resolution and Administrative Services
Virginia Department of Education
P.O. Box 2120
Richmond, Virginia 23218-2120
Fax: (804) 786-8520

Here is what I sent in, based on the Fairfax comments with my own commentary added:

As a parent of a disabled child, I am extremely concerned and dismayed by many of the proposed changes to the Commonwealth of Virginia’s special education regulations. These regulations and policies are intended to ensure my child’s rights are respected and protected. As his parent, legally responsible for protecting those rights and acting in his best interests, I am concerned that so many of the proposed changes seem to threaten my ability and right to protect my child and ensure his rights as a human being are respected and honored.

The purpose of the IDEA is to ensure children with disabilities are treated as human beings, just as their non-disabled peers are. In the IDEA, children are with disabilities are guaranteed a free and appropriate education that meets their unique needs and prepares them for further education, employment, and independent living.

Thus far, Virginia has been at the forefront of protecting those rights and promoting the necessary parent-school partnership for protecting those rights. This essential partnership ensures that child such as my own child have access to appropriate services and support. Without this relationship, schools and parents lose important information and cooperation for understanding the needs of any child and appropriately serving and supporting them and educating them. The proposed changes threaten this relationship by threatening Virginia’s historic guarantee of parental rights in special education. The Virginia Board of Education must not allow this roll back of civil rights in Virginia for children with disabilities and parents, such as me, who advocate for them.

It is my understanding that the IDEA requires parent consent as a matter of ensuring parent involvement, and thus recognizes the essential role of parent involvement, advocacy, and support in ensuring the rights of children with disabilities. The spelled-out right of consent to changes in an IEP and termination of services are currently Virginia-specific. They were added to clarify the intended partnership between parents and schools. It makes no sense to exclude part of an IEP team- especially the sole member of the team whose natural role is direct representation of the child- from important decisions such as changes to that agreed IEP.

The current proposal deletes important Virginia-specific parental rights and protections under the argument that it is respecting Part B if the IDEA 2004 to “minimize the number of rules, regulations and policies to which local educational agencies and schools are subject.” This is not a specific mandate of the IDEA, but a general theme of federal legislation. The changes proposed actually move to defeat the mandate of the IDEA: to ensure children with disabilities a free and appropriate education.

Regulations promulgated by the federal government are considered a bare minimum standard for states to follow. States can, and regularly do, exceed federal regulations because the respond to the needs of their particular citizens, which is their right. Minimizing rules, regulations, and policies must not mean elimination of long-standing Virginia-specific rights currently guaranteed to the Commonwealth’s citizens.

Below I address specific concerns with the proposed Regulations Governing Special Education Programs for Children with Disabilities in Virginia. These specific concerns address area which have historically guaranteed the rights of children with disabilities and their parents, and are essential in providing all children with disabilities the free and appropriate education that is their right.

1. Parent Consent Provisions

Parental Consent to the Termination of Services: [8 VAC 20-81-90, provision of existing regulation, not included]

I oppose the elimination of the current requirement that a parent consent to the termination of special education eligibility and related services. I thoroughly contest the claim that Virginia’s guarantee of the parental right of consent to the termination of services is particularly burdensome or costly to schools; removing this right on consent to termination instead places schools in a position of conflict of interest, where the child’s rights conflict with a school’s budget, and goes directly against the mandate of the IDEA.

Virginia has historically recognized the essential parental right to participate in any decision on the continued services of their child because this right of consent:

1. Ensures that the best interests of the child are served,
2. Guarantees that the parent is treated as a full and equal member of the IEP team as required by IDEA,
3. Protects the integrity of the IEP team process outlined in IDEA,
4. Prevents schools from making eligibility and service termination decisions by fiat and not by the consensus of the IEP team as intended by IDEA, and
5. Acts as a counterbalance to the pressure on school personnel to eliminate children from their special education services due to limited school district resources.

Without the right of consent to the partial or full termination of services, parents would be unable to prevent local education agencies (LEAs) from ending services when it is not in the best interest of the child. Practically speaking, the fear of termination may also force parents to accept less adequate IEPs and services, which goes directly against the purpose and intent of the IDEA. In addition, disabilities are by nature lifelong conditions; services should not be removed simply because the child has improved (no matter how slightly).

Parental Consent to Services for Transfer Students: [8 VAC 20-81-120, provision of existing regulation, not included]

I oppose the elimination of the current requirement for parental consent prior to providing special education services to transfer students. The proposed regulations would require only a “consultation” with the parent. Such a proposal could permit an LEA to implement an IEP that does not offer comparable services to the student’s previous school district. Parents would have no ability to
require an LEA to come to consensus on the delivery of services upon transfer, as is otherwise required in the development and amendment of existing IEPs.


2. Child Study Committees [8 VAC 20-81-50, provision of existing regulation, not included]

I opposs the elimination of Child Study Committees as currently required in the existing regulations. VDOE’s proposal to leave the referral procedures up to LEAs removes the protection of timelines and the guarantee that parents will participate in the referral process. The proposal also eliminates the requirement that classroom interventions not delay the evaluation. This endangers the right of a child to receive appropriate service and support in a timely manner.

Existing Child Study Committee requirements outlining the procedures LEAs must use to refer students for special education ensure consistency in the application process across all Virginia jurisdictions and are vital to parents’ understanding of and participation in the referral process. Consistent referral procedures also ensure that LEAs do not set additional timelines that unduly extend the time between when a child is referred for services and a parent consents to an evaluation.

3. Functional Behavioral Assessments (FBAs) [8 VAC 20-81-10, pg. 27-28]

I oppose permitting the process of developing a Functional Behavioral Assessment (FBA) to be merely a review of existing data that does not require input of the parent. The regulations should
clearly state that an FBA is “an evaluation that consists of a systematic collection and analysis of direct and indirect data, and may include a review of existing data.” It is the frequent experience of parents that schools conduct FBAs in name only, failing to explore the actual function of a child’s behavior and hastily compiling previous observations into a paper trail to justify disciplinary action. Failure to
effectively investigate behavior which impedes learning defeats the purpose of the FBA to change such behavior and allow the student to participate as much as possible in a least restrictive environment. To
determine an appropriate Behavioral Implementation Plan (BIP), a formal FBA must be conducted, and for an assessment to be effective, the parents must participate as a matter of parental consent. (For additional discussion of FBAs, see #10.)

Parents often have information vital for implementing an effective and appropriate FBA; this information may not be immediately apparent by simple observation or review of existing data. Many disabilities that effect behavior are not immediately apparent. Misinterpretation of behavior can result in ineffective and inappropriate FBAs, and thus eliminate a child’s access to a free and appropriate education.

4. Transition [8 VAC 20-81-110, pg. 155]

I support the continued allowance in the proposed regulation that directs transition services be put into effect when the child turns 14, two years younger than the federal guideline. Parents and children need to plan for postsecondary goals well before the age of 16 in order to devise a correct curriculum that aims to improve long-term outcomes and to accumulate necessary information for decision making on further education, employment and independent living.

5. Timelines [8 VAC 20-81-60, pg. 97]

I oppose the proposed 65 business day timeline for an eligibility decision rather than adhering to the federal guideline of 60 days from the date of parental consent for evaluation. This proposal could cause a child with a disability to wait an additional 4 weeks longer than allowed by the federal guideline to be found eligible. Intended by federal law to prevent a child who may need services from waiting unnecessarily to receive them, the 60 day limit provides ample time for an evaluation in most cases.

In those instances where additional time may be necessary to produce the required data, the I recommend parent consent should be sought to extend the limit by a maximum of 10 additional
business days. In addition, this timeline should apply to both initial evaluations and reevaluations. I further recommend that a clear time limit be established from date of referral to the date of parent consent for an evaluation so that an LEA does not attempt to unduly extend the timeframe.

6. Developmental Delay [8 VAC 20-81-80, pg. 121]

I oppose limiting the developmental delay category to the ages of 3 to 5 and recommend the IDEA 2004 definition of developmental delay from the ages of 3 to 9. The developmental delay label is especially important for young children who exhibit deficits and require early intervention, but who may not be easily categorized. These children benefit from maintaining the developmental delay label and delaying a decision on the determination of their essential disability. Rushing to label a child’s disability may have serious long term repercussions on that child’s education and emotional development. Labeling children for convenience of policy or law is extremely dangerous and senseless.

7. Definition of Autism [8 VAC 20-81-10, pgs. 12-13]
I recommend that the proposed Virginia regulation defining autism reflect that of federal regulation, which states, "A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in this definition are satisfied." [Italics added.] Virginia regulations have substituted the word "diagnosed" for "identified" and is an improper term to use for educational purposes. School personnel are not qualified to make medical diagnoses.

8. Eligibility Criteria [8 VAC 20-81-80, pg. 119-120]

I strongly oppose including any eligibility criteria for disability categories in the regulations that exceed those specifically defined in the federal regulations. Such overreaching provisions may work to the disadvantage of children who would otherwise qualify for services as a child with a disability. For example, by defining the criteria for eligibility under autism, the proposed regulations may exclude children with an autism spectrum disorder who do not fit the narrow diagnostic criteria contained in the proposed regulations. Federal law includes autism as a covered disability under IDEA; it does not
endeavor to define the various educational criteria for the autism disability as a spectrum disorder.

Furthermore, if VDOE sets specific criteria for autism, which it has not done previously, it will be taking away flexibility from LEAs in making individual eligibility determinations.

Autistic spectrum disorders are particularly difficult to categorize because of the wide diversity of skills and disabilities presented by people with autistic spectrum disorders. Removing the flexibility from LEAs in making individual eligibility determination will threaten the rights of children who, though disabled, do not fit into neatly defined categories and diagnoses.

9. Definitional Terms for Disabilities [8 VAC 20-81-10, pgs. 36, 24-25]

I recommend use of the term “emotional disability” rather than “emotional disturbance.” The term “emotional disability” conveys less negative stigma on the child than “emotional disturbance,” while summarizing the nature of the eligibility that it is intended to denote.

Similarly, I recommend the regulations use the term “intellectual disability” in place of “mental retardation.” The term is outdated and offensive to many as it use in general language has become too extremely pejorative to be useful in designating or summarizing any disability of any kind. Use of the term “mental retardation” tends to lower expectations of educators on children who meet the criteria for the disability.

10. Discipline Procedures [8 VAC 20-81-160, pg. 183-195]

I opposs elimination of the current requirement for the IEP team to convene to conduct an FBA and implement or modify a behavioral plan for any child with a disability under a long-term removal. Students with disabilities whose behavior warrants such removals need greater intervention from their IEP teams, not less. IEP teams must act proactively to determine the causes of behavior and plan ways to prevent future episodes that prevent the student from being successful.

In addition, I oppose elimination of the current provision that states students who are short- term removed should be provided services that enable the child to appropriately progress, not just participate in the general education curriculum. Services provided for such students are already grossly inadequate, and the student’s disciplinary problems are greatly compounded by the failure to meet the child’s educational needs. The proposed regulatory change would eliminate all requirements on local school divisions to attempt to remedy this shortcoming.

11. IEP Progress Reports [8 VAC 20-81-110, pg. 154, provision of existing regulation, not included]

I oppose the proposed elimination of the current requirement that IEP progress reports be provided for students with disabilities at least as often as periodic report cards are provided to non- disabled students. There is no justification for the change in providing progress reports to students with disabilities less frequently than they are provided to students without disabilities. In fact, recording and sharing data about students with disabilities is vital in documenting the student’s measurable progress.

12. Short Term Objectives [8 VAC 20-81-110, pg. 151]
I recommend the regulations clarify that IEP teams must consider including short-term objectives or “benchmarks” for all students. Unless consideration of these objectives is included on the IEP meeting agenda checklist, these useful tools will go unused, much to the loss of students with disabilities for whom benchmarks are necessary to determine if their educational program is actually working. As every good teacher knows, reaching IEP goals is unlikely without short-term objectives.

13. Prior Written Notice [8 VAC 20-81-170, pgs. 201-202, provision of existing regulation, not
included]

I strongly oppose the proposed limitations in relation to current regulation on when schools need to provide Prior Written Notice. Prior Written Notice is one of the few ways that parents can get their questions answered by reluctant schools before entering the procedures leading to due process and must not be chipped away from the existing rights of parents in Virginia. Prior Written Notice not only protects parents, it also protects schools.

14. Due Process Hearing System [8 VAC 20-81-210, pg. 234-264]

I strongly oppose removing appointment of due process hearing officers from a list maintained by the Supreme Court of Virginia and shifting responsibility for the entire hearing system exclusively to VDOE. The proposed change presents a possible conflict of interest and would improperly create a non-independent judicial system which could not guarantee the impartiality of hearing officers that is required by IDEA.

Furthermore, I oppose the elimination of the current requirement to develop and submit an implementation plan following the rendering of a due process decision or the withdrawal of a hearing request. The proposal that VDOE be provided by the LEA, upon request, with documentation that the area(s) have been corrected is only an after-the-fact requirement upon school divisions. Parents would no longer have the assurance of written guidance or timelines so that they know when to expect corrections to occur and ensure their child receives FAPE. Implementation plans ensure that changes are made in an effective and timely manner.

15. Special Education Advisory Committee Guidelines [8 VAC 20-81-230, pg. 273-274]

LEA participation on local advisory committees:
I oppose the change in the proposed regulations that would allow LEA personnel to act as voting members on local advisory committees. A conflict of interest would prevent LEA employees
from acting in a truly independent capacity. In addition, the proposal thwarts the purpose of the advisory committee, which is to offer honest critiques of the LEA’s special education policies and programs. It is hard to see how a member of the advisory committee who also works for the LEA could operate effectively if the member had to consider his or her employer when weighing in on committee deliberations, decisions, and recommendations.

Gender and ethnic restrictions on membership of local advisory committees:
I opposs the proposed requirement that local advisory committees reflect the gender and ethnic makeup of the local school division. This proposed requirement is highly discriminatory against women in their roles as advocates for their children. Women also make up the majority of professionals in education and volunteers on local PTAs. Such a gender requirement is not imposed upon LEAs in hiring administrators, teachers and other professionals, nor is this gender requirement typically made of other school board advisory committees.

I further oppose the proposed requirement that local advisory committees reflect the ethnic makeup of the local school division. This requirement is so vague as to be unusable. For example, in many areas of Northern Virginia, the ethnic diversity is so broad that it is not uncommon to see more than 50 different cultures represented in a single school. Even if the appropriate volunteers among parents of children with disabilities could be found, a local advisory committee that contained a representation of every ethnic group in the City of Fredericksburg would create an entity whose size would completely paralyze and render it useless. Additionally, parents and guardians do not necessarily share ethnicity with their children or the children for whom they are advocating (such as foster children), so even if all parents volunteered, the ethnic makeup of the school division may not be represented, depending on how it is to be determined.