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Virginia Special Education Regulations

Proposed Regulations l Governor's Review l Revision Process
Public Comments l Hearing Schedule l Position Statements l News

Comment Period for VA Regs Ends
on June 30, 5 p.m.
File your Comment Now
via Email or Online Alert!

Alert: Protect Educational Rights in Virginia (June 28, 2008)

Your help is urgently needed.

On April 28, 2008, the Virginia Department of Education (VDOE) published the proposed Special Education Regulations (8VAC20-80/81). Many of these regulations will have a negative impact on children with disabilities and their families. In this Alert, we describe several regulations and why they are harmful. We are asking you to submit comments about these regulations.

Please read the full text of this Alert at:

http://www.wrightslaw.com/nltr/08/al.va.regs.danger.htm

and view our Virginia Regs page at:

http://www.wrightslaw.com/virginia/regs.index.htm

and then submit your comments online or via email as described below.

Assume you have three issues you want to address, we recommend that you send three separate emails, or file three separate comments with the online Town Hall rather than putting all together at one time.

Thank you!

Who? We urge all Virginians to make your voices heard about the proposals to erode the rights of parents. You do not have to be a parent of a child of a disability to comment on these regulations.

What Do I Say? There is no special format. Simply note your concerns about a proposed regulation. Reading the other comments on the Town Hall (link below) will help you formulate your own thoughts.

How? You can submit your comments online (and read comments submitted by others) at the Virginia Regulatory Town Hall, a nifty, user-friendly site:

http://www.townhall.virginia.gov/l/comments.cfm?stageid=4353

Look for the two red bullets on that page to read and submit comments.

You may also submit your comments about the proposed regulations to the VA Department of Education by fax to (804) 786-8520 or by email to:

ReviseSpedRegs@doe.virginia.gov

When? The deadline to submit comments is 5 p.m., Monday, June 30, 2008.

Background

The Individuals with Disabilities Education Act was reauthorized in December 2004. All states are required to revise their special education statutes and regulations so they are consistent with the reauthorized IDEA.

The Virginia Department of Education published the new proposed Special Education Regulations on April 28, 2008. Nine public hearings were held.

The Virginia Department of Education will continue to accept written comments from the public until 5 p.m., Monday, June 30, 2008.

You need to submit your comments now.

Concerns

We were surprised and disappointed when we read the Virginia Department of Education's proposed regulations. Many of the proposed regulations are at odds with the Findings and Purposes of the Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400). If you read the "Purposes" of IDEA at Section 1400(d), you know that the intended beneficiaries of the law are children with disabilities and their families. The Purpose of IDEA 2004 is:

"to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living" and "to ensure that the rights of children with disabilities and parents of such children are protected ..." (20 U.S.C. Sec. 1400(d))

In developing the proposed regulations, Dr. Billy K. Cannaday, Jr., Superintendent of Public Instruction, H. Douglas Cox, the Assistant Superintendent, and the special education staff, all appear to have ignored the purpose of the law, protecting the rights of children and families. Their concern appears to be protecting school districts, instead of children. Before revising or re-writing these regulations, we encourage the Virginia Department of Education staff to familiarize themselves with the Findings and Purposes of IDEA 2004 and ask themselves these questions:

"Does this proposed change to a regulation help children with disabilities and their families who are the intended beneficiaries of the law? How does it help them?" "If this proposed change to a regulation does not help children with disabilities and their families, why are we proposing to change the regulation? Who will benefit from this change?"

Specific Concerns

As written, the proposed Regulations will hurt children and their parents in several areas:

Proposed Regulations Restrict and Reduce Parental Involvement in Special Education Decision-Making

Eliminating Parental Consent

The current regulations require parental consent before the school can make any change in the IEP. The proposed regulations do not require parental consent before schools can partially or completely terminate services in the IEP.

Proposed regulation 8 VAC 20-81-90 entitled "Termination of special education and related services" in subsection (B)(3) explains that, in the termination of special education services "parental consent is not required."

Does this proposed regulation benefit children with disabilities and their families? No.

This proposed regulation will undermine trust and reduce participation by parents in educational decision-making for their children.

The Virginia Department of Education disregarded the intent of Congress when IDEA was reauthorized. Congress sought to increase and strengthen parental participation and involvement as the Findings in IDEA 2004 state:

"the education of children with disabilities can be made more effective by ... strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home ..." (20 U.S.C. 1400(c)(5)(B))

Conclusion: This proposed regulation does not benefit children with disabilities and their parents. It is designed to benefit school districts.

Eliminating Requirements for Child Study Committees

The proposed regulations would eliminate the current requirements for Child Study Committees. Under the proposed regulations, each school system could develop procedures to review referrals of children who are suspected of having a disability. Parents may be eliminated from the screening process.

Does this proposed regulation benefit children with disabilities and their families? No.

If parents are removed from the screening process, school personnel will be deprived of an invaluable source of information about the child. This proposed regulation sends a clear message that parental participation is of no importance to school staff.

As noted in the earlier discussion, IDEA encourages parental involvement and parental participation at every step of the special education process:

"the education of children with disabilities can be made more effective by ... strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home ..." (20 U.S.C. 1400(c)(5)(B))

Conclusion: There is no rationale for this proposed regulation that would discourage parental participation and involvement. It does not benefit children with disabilities and their parents.

Unnecessarily Long Timelines for Evaluations and Eligibility Decisions

Proposed Virginia regulation 8 VAC 20-81-60 entitled "Referral for initial evaluation" in subsection (B)(1)(g) states that the school district shall "Ensure that all evaluations are completed and that decisions about eligibility are made within 65 business days after the parent has provided written consent to the evaluation process."

The proposed regulations give school districts 65 business days to complete special education evaluations, instead of the 60 calendar days set forth in IDEA.

Does this proposed regulation benefit children with disabilities and their families? No.

IDEA 2004 expanded the educational issues that must be evaluated and set out a timeframe within which these evaluations must be completed. After the parent provides consent, the school must complete the initial evaluation and determine if the child is eligible for special education services within 60 calendar days. (Section 1414(a)(1))

Virginia proposes a 65 business day timeline which calculates to three months, instead of two months! A 65 business day timeline will cause unnecessary delays in conducting evaluations and delays before children with disabilities receive the special education services they require. This proposal is not intended to benefit children with disabilities and will cause harm.

Virginia also proposes that this 65 business day timeline could be extended further if there is a "need" to collect additional "data."

Conclusion: These proposed regulations do not benefit children with disabilities and their parents. The proposed regulations will damage children because of unnecessary delays before they receive the services they need.

Eliminating Current Requirements to Include Benchmarks or Short-term Objectives in IEPs

Virginia proposes to remove the current requirements that IEPs include short-term objectives and benchmarks in IEPs.

Does this proposed regulation benefit children with disabilities and their families? No.

Short-term objectives and benchmarks are steps that measure the child's progress toward the annual goals in the IEP. Short-term objectives provide teachers and parents with a clear way to evaluate the child's progress. Eliminating short-term objectives will create problems for teachers and parents.

Although Congress removed the requirement to include short-term objectives and benchmarks in IEPs, they did not discourage states from continuing to use objectives or benchmarks. Why did Congress eliminate the requirements to include short-term objectives in IEPs?

According to the US Department of Education's Commentary to the Regulations at:

http://www.wrightslaw.com/idea/comment/costs.pdf

"By eliminating the need to develop benchmarks or short-term objectives, [this] could result in teachers spending less time on each IEP ... Based on average compensation for teachers of $48 per hour, a reduction in time as modest as 15 minutes could save approximately $12 per IEP ... " (Federal Register, Vol. 71, No. 156, August 14, 2006 at page 46747)

Does eliminating short-term objectives or benchmarks from IEPs benefit children with disabilities and their families? No.

Congress made this change so IDEA 2004 would be more palatable to school administrators. It is unseemly and unnecessary for Virginia to follow this path.

Impartial Due Process Hearings - HO Appointed by VDOE - Right to Edit Decisions

The Virginia Department of Education wants to remove appointment of Hearing Officers from the Virginia Supreme Court and wants the power to edit and require re-issuance decisions rendered by Hearing Officers. This is an incredible attempt to further weaken parental rights to an impartial due process hearing and will result in an uneven "playing field" to the detriment of parents.

Since inception of Virginia's special education regulations, Hearing Officers assigned to adjudicate Due Process Hearings have been appointed and managed by the Supreme Court of Virginia. The proposed regulations at 8 VAC 20-81-210(B) remove the Supreme Court and vest sole authority with the Virginia Department of Education. The current regulation should not be changed. The Supreme Court of Virginia should continue to maintain the list and appointment of Hearing Officers for "impartial due process hearings."

To do otherwise will not only create the "appearance of an impropriety" but is a conflict of interest that will lower the public's respect and esteem for the Virginia Board of Education and Virginia Department of Education.

In subsection 4 of that same proposed regulation, the VDOE seeks to subvert the judicial process. VDOE wants the power to review and analyze the decisions of the Hearing Officers and require that the decisions be reissued "relative to correct use of citations, readability, and other errors such as incorrect names or conflicting data, but not errors of law which are reserved for appellate review."

All litigation has "conflicting data" including conflicts in testimony, exhibits, evidence, and it is the Hearing Officer's responsibility to resolve those conflicts. Considering that the Virginia Department of Education has been a defendent in due process hearings, (and even had to pay attorneys fees to Pete Wright and tuition reimbursement to his client in one such case), it is no wonder that the VDOE wants the power to revise decisions.

Our state and federal constitutions created a balance of power between the judiciary, legislature, and government. Virginia Department of Education's proposed management of the due process system seeks to change that balance. If this regulation is implemented, it is at risk for being ruled unconstitutional.

Due Process Hearings - Limit Parents Rights and Expand School District Rights

In that same proposed regulation 8 VAC 20-81-210, but further down in subsection (D)(6) the Department seeks to grant an unfair advantage to school districts in Due Process Hearings. Their proposed regulation reads that:

The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the [due process] notice . . .
a. If the local educational agency is not the initiating party to the due process hearing proceeding, the Special Education Hearing Officer has the discretionary authority to permit the local educational agency to raise issues at the hearing that were not raised in the parent's request for due process in light of particular facts and circumstances of the case.

In other words, when a parent initiates a due process hearing, a school district, at and during the hearing, may raise new issues, but the parent is barred from raising new issues.

In all types of civil litigation, when one party files a suit, the other files a reply which can also include a claim against the initiating party. Thus all claims and issues are heard at that time. During trial, if a new issue arises which is related to the case, the Court has discretion to permit testimony on that. However, Courts will not permit "trial by ambush or surprise" when someone knew of another issue and purposefully failed to disclose it until trial.

The proposed regulation permits school districts to prepare a "trial by ambush." This is wrong and is designed, not to protect the rights of children (remember, second primary Purpose of IDEA 2004 at 1400(d)), but instead to protect school districts from parents.

That this regulation was even proposed by Superintendent Cannady, Asst. Superintendent Cox, and their staff, certainly provides insight into their perception of who they are to serve and benefit. Is it the parents and their children, or the school districts?

Subsection "a" of proposed regulation 210(D)(6) should be deleted.

END of Pete and Pam's Comments

After June 30 - Next Steps


If Governor Kaine chooses to comment, his comments must be transmitted to the agency and the Registrar by July 15.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period starts to run.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency.

The Governor's objection or suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds that changes made to the proposed regulation have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register.

To see the comments submitted by other organizations, such as the Virginia Coalition for Students with Disabilities, the Virginia Office for Protection and Advocacy, JustChildren, The Arc of Virginia, CHADD, and news reports, please go to our Virginia regulations page at:

http://www.wrightslaw.com/virginia/regs.index.htm

Again, without delay, right now, please submit your comments either online or via email to the Virginia Department of Education.

The deadline is 5 p.m., June 30, 2008.

Many thanks,
Pete and Pam Wright

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