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- What is special education?
- Special education programs are for students who are determined to require special educational accommodations. In Virginia, these programs are run by both federal and state law, but in most cases that state law is the same as federal law. State law can also provide greater or more specific protections than federal law. But state law is never allowed to limit the protections created by federal law. Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).
- Who is eligible for special education?
- Children with one of the following disabilities that need specialized educational services in order to benefit from their education are entitled to receive special education and related services. These include:
- mental retardation;
- hearing impairments (including deafness);
- speech or language impairments;
- visual impairments (including blindness);
- emotional disturbance;
- orthopedic impairment;
- traumatic brain injury;
- other health impairments;
- specific learning disabilities;
- developmental delay;
- intellectual disability.
Title 20 United States Code (U.S.C.) Section (Sec.) 1401(3); Title 8 Virginia Administrative Code (VAC) Sec. 20-81-10; Code of Virginia (VA Code) Sec. 22.1-319.
- Children may be eligible for special education between the ages of 2 and 21 years of age. [8 VAC Sec. 20-81-10; VA Code Sec. 22.1-213.]
- A student who turns 22 years of age after September 30 of the current school year remains eligible for the remainder of the school year. [8 VAC Sec. 20-81-10.]
- A child is only eligible for special education if
1. they meet specific eligibility criteria adopted by the Virginia Department of Education for their particular disability, and
2. the disability affects their educational performance and causes the child to need special education and related services. [8 VAC Sec. 20-81-80.]
- A child is not eligible for special education if the determining factor in the child’s exceptional needs is a lack of appropriate instruction in reading, a lack of instruction in math, or limited English proficiency. [20 U.S.C. Sec. 1414(b)(5); 8 VAC Sec. 20-81-80(D)(4).]
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
- Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE). FAPE means special education and related services that are provided at public expense and without charge, meet appropriate standards, include preschool through secondary education, and conform to an Individual Education Program (IEP). 20 U.S.C. Sec. 1401(9); Title 34, Code of Federal Regulations (C.F.R.) Sec. 300.17.
- Special education must be provided in the least restrictive environment (LRE). To the extent appropriate, all students with disabilities should be educated with students who are not disabled. In other words, students with disabilities should not be separated from others because of their disability unless it is absolutely necessary and/or provides benefit to the student. 34 C.F.R. Sec. 300.114.
- Special education means specially designed instruction, free to parents, to meet the unique needs of a child with disabilities. Specially-designed instruction means:
- “adapting, as appropriate to the needs of an eligible child…the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. Sec. 300.38(b)(3); VA Code Sec. 22.1-213.
- An Individual Education Program (IEP) must be developed and implemented for each student with a disability. The IEP will include measurable annual goals, including academic and functional goals that enable the student to be involved in and make progress in the general curriculum. 34 CFR Sec. 300.320(a)(2); 8 VAC Sec. 20-81-110(G). The annual goals will also be designed to help the student participate in extracurricular and other nonacademic activities. 34 CFR Sec. 300.320(a)(4); 8 VAC Sec. 20-81-110(G).
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
- In addition to being required to provide a free appropriate public education, school districts are required to provide “related services”. Related services are services which allow a student to benefit from his special education program. And include:
- corrective, or
VA Code Sec. 22.1-213; 8 VAC Sec. 20-81-10; 34 CFR Sec. 300.34(a).
- In Virginia, related services may include any of the following:
- Speech-language pathology services;
- Audiological services;
- Orientation and mobility instruction;
- Physical and occupational therapy;
- Counseling services, including rehabilitation counseling;
- Psychological services other than assessment and development of the individualized education program;
- Parent counseling and training;
- Health and nursing services;
- Social worker services;
- Recreation services, including therapeutic recreation;
- Interpretive services;
- Early identification and assessment of disabilities;
- Medical services for diagnostic or evaluation purposes.
VA Code Sec. 22.1-213 of the Code of Virginia; 8 VAC Sec. 20-81-10.
- This list of related services does not include all services that may be provided to special needs students. Other services can include other developmental, corrective, or supportive services which are needed to help a child with a disability benefit from special education. Other related services might include artistic and cultural programs as well as art, music and dance therapy. 8 VAC Sec. 20-81-10.
- Who provides special education?
- The state education agency and the local school division are both responsible for ensuring that appropriate special education services are delivered.
- In Virginia, services are typically provided by local school divisions, but may also be provided by state-operated programs which offer education and related services for children with disabilities.
- If the school division fails to ensure services, the Virginia Department of Education is ultimately responsible for providing special education services. 20 U.S.C. Sec. 1413(a)(1); 20 U.S.C. Sec. 1412(a)(11); 8 VAC Sec. 20-81-30; VA Code Sec. 22.1-214.
- Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
- Special education must be provided in a least restrictive environment. As much as possible, children with disabilities must be educated with their nondisabled peers.
- Students with disabilities may be removed from regular classroom learning if their disability is so severe that general education along with other students would not be sufficient for this student. 20 U.S.C. Sec. 1412 (a)(5)(A); 8 VAC Sec. 20-81-130(A).
- Specialized education can be offered in
- the regular classrooms, in a resource room,
- at home,
- in hospitals or
- residential programs.
- Special education also includes related services.
- Virginia law says that a special education student should only be removed from the regular classroom environment when their disability makes education in a regular classroom impossible, even with the use of supplementary aids and services. 8 VAC Sec. 20-81-130(A).
- In that event, the IEP team may decide that some combination of a specialized learning environment and the general classroom, or a more separate setting, is necessary for the child to benefit from his or her education.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
- Schools in Virginia are required to proactively find, pinpoint and evaluate children who need special education and related services. 8 VAC Sec. 20-81-50(A).
- Local schools screen students for special education in speech, voice, language, and motor skills to find and pinpoint students to refer for evaluation. 8 VAC Sec. 20-81-50(C).
- Each school has a school-based team which processes referral requests for children suspected of having a disability. 8 VAC Sec. 20-81-50(D)(2). If the school-based team suspects a disability, it must refer the child to the special education administrator within 3 business days. 8 VAC Sec. 20-81-50(D)(5).
- Parents and teachers may also request an evaluation or assessment for special education by:
- writing a letter to or
- speaking with the special education administrator. 8 VAC Sec. 20-81-60(A)(1).
- The request must:
- explain the reasons that an evaluation is requested and
- describe any efforts that have already been made to address the concerns. 8 VAC Sec. 20-81-60(A)(2).
- The special education administrator must decide within 3 business days whether to:
1. evaluate the child,
2. request a review by the school-based team, or
3. deny the request.
- If the special education administrator refers the request to the school-based team, the team has 10 business days to decide whether to evaluate the child. 8 VAC Sec. 20-81-60(A)(3).
- If the school decides to evaluate the child, the special education administrator must get the parent’s written consent to conduct an evaluation. 8 VAC Sec. 20-81-60(B)(1)(e).
- All evaluations must be completed and a decision regarding eligibility must be made within 65 business days of the special education administrator’s receipt of the referral for evaluation. However, this timeline does not apply if
1. a parent repeatedly fails or refuses to make their child available to be evaluated or
2. if the student transfers to a new school division during the evaluation process. 8 VAC Sec. 20-81-60(B)(1)(g).
- If the school decides not to evaluate, the parent must be provided with:
1. a written notice of the decision,
2. a complete explanation of the reasons for the decision not to evaluate, and
3. an explanation of procedural safeguards, including the parent’s right to challenge the decision through either a request for mediation or a due process hearing. 8 VAC Sec. 20-81-(70)(B)(5).
- Evaluations or assessments are conducted by a multidisciplinary team in all areas of suspected disability.
- The team first reviews existing information regarding the child and determines what additional evaluation data is needed. 8 VAC Sec. 20-81-70(B)(1)(a). The child is then tested by qualified personnel in all areas related to the suspected disability. Depending on the child’s needs, this may include an assessment of health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, motor abilities, and adaptive behavior. 8 VAC Sec. 20-81-70(C)(14).
- No one test can determine that this student has a specific disability. 8 VAC Sec. 20-81-70(C)(11).
- Test tools must be valid and given by trained and qualified professionals. 8 VAC Sec. 20-81-70(C)(1)(d).
- Tests must also be administered in the child’s primary language. 8 VAC Sec. 20-81-70(C)(1)(b).
- After the evaluations are completed, an multidisciplinary team will determine whether the child has a disability and thus requires special education and related services. 8 VAC Sec. 20-81-80(C). To make this determination, the group considers
- the test results,
- the child’s educational needs, and
- observes the child in his or her learning environment. 8 VAC Sec. 20-81-80(D)(3).
- Parents are entitled to a free written copy of the evaluation report. 8 VAC Sec. 20-81-70(D). If the parent disagrees with the findings or recommendations, the parent may request an independent educational evaluation (IEE). The school must provide an IEE to the parent for free unless it chooses to seek a due process hearing to determine whether its own assessment was legally adequate. If the hearing officer determines that the school’s original assessment was appropriate, the parent may choose to pay for the IEE themselves. 8 VAC Sec. 20-81-170(B)(2) and (3).
- Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parents have any say so in the IEP?
- Once it is determined that a child is eligible for special education, an Individualized Education Program (frequently referred to as an “IEP”) is developed for that child. 8 VAC Sec. 20-81-110.
- An IEP outlines in writing the educational program for the child. 8 VAC Sec. 20-81-10. It is developed at a meeting by a team including the parent, a special education teacher, a general education teacher, and a district representative or school administrator. One team member must be able to interpret the instructional implications of the evaluation results. Other participants may include the school psychologist, therapists, service providers and the child, if appropriate. 8 VAC Sec. 20-81-110(C).
- The IEP must include:
- The child’s present levels of academic and functional performance;
- Measurable annual goals;
- Benchmarks and short-term objectives;
- A description of how the child’s progress toward goals will be measured and reported;
- Specific special education services;
- Extent to which the child will not participate with nondisabled child in regular education classes as well as extracurricular and nonacademic activities;
- Anticipated duration, frequency, and location of services and modifications;
- Modifications for state or district-wide assessments, including the Virginia Standards of Learning assessments;
- Initial and/or secondary transition services;
- A statement that the child and the parent(s) were given at least one year’s advance notice of the rights that will transfer to the child on its eighteenth birthday.
8 VAC Sec. 20-81-110(G).
- Under Virginia law, a student with disabilities is not allowed to participate in any part of a special education program without written parental consent to the IEP. 8 VAC Sec. 20-81-170(E)(1).
- If a parent refuses to consent (or refuses to respond to a request for consent) to the IEP, the local educational agency may NOT use mediation or due process hearing procedures to obtain consent and the agency is exempted from providing FAPE to the student. 8 VAC Sec. 20-81-170(E)(4)(b).
- If a student with an IEP transfers between local educational agencies inside of Virginia or transfers from a local educational agency outside of Virginia to a local educational agency in Virginia within the same school year, the new local educational agency must provide that child with FAPE including services comparable to those included in his or her existing IEP until the new school either adopts and implements the existing IEP or conducts an evaluation and develops a new IEP. 8 VAC Sec. 20-81-120(A)(2).
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
- If a parent believes the district has failed to implement a valid IEP or has failed to follow special education law, or is discriminating against a student or a group of students, the parent may file a written complaint directly with the Virginia Department of Education (VDOE). The VDOE will investigate and will issue a decision regarding non-compliance within 60 days. 8 VAC Sec. 20-81-200.
- What options does a parent have if s/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
- If a parent disagrees with the proposed IEP placement or services, or if the parent believes the district has failed to comply with the child’s IEP, the parent may
(1) file for mediation,
(2) file a complaint, or
(3) file for a due process hearing.
- Mediation is a voluntary and confidential process in which a trained, objective mediator helps parents and school personnel agree upon solutions to many special education problems. Mediation is free to parents and agreements reached during mediation are set forth in writing and are enforceable in court. 8 VAC Sec. 20-81-180; VA Code Sec. 22.1-214(B).
- A request for mediation must be made by both the parent and the school division. Parents should contact the school to initiate the mediation request. The school will then send the request to the Virginia Department of Education.
- Mediation may be pursued at the same time as an outstanding complaint or a request for due process. If an agreement is reached during mediation that resolves the due process or complaint issues, the due process hearing will be dismissed and/or the complaint may be withdrawn. Neither due process hearings nor complaints are delayed while awaiting the outcome of mediation, although the parties may agree to extend the time period for resolution of the mediation. 8 VAC Sec. 20-81-200(D)(4); VDOE Parent’s Guide to Special Education Dispute Resolution (2008).
- In Virginia, a complaint is a written request for an investigation that is filed with the Office of Dispute Resolution and Administrative Services when a parent alleges that the school has violated one or more of the state and/or federal laws regarding special education. The complaint must be filed within 1 year of the alleged violation.
- Complaints should include:
- the child’s name, address,
- the name of the child’s school,
- a description of the disagreement,
- including the facts related to the problem, and
- a proposed resolution to the problem.
- The original complaint and any supporting documentation should be faxed or mailed to the VDOE Office of Dispute Resolution and Administrative Services and a copy of the complaint and supporting documentation should be sent to the school. 8 VAC Sec. 20-81-200(A) and (B); VDOE Parent’s Guide to Special Education Dispute Resolution (2008). It is also recommended that the parent keeps another copy of the complaint and supporting documentation for themselves throughout this process.
- A complaint specialist investigates the allegations and issues a Letter of Findings (LOF) explaining why the school is, or is not, in compliance with the law. The LOF must be issued no more than 60 days after the complaint is received and the decision may be appealed within 30 days after the LOF is issued.
- If the school is not in compliance with the law, the complaint specialist issues a Corrective Action Plan for the school to follow to bring it into compliance. If the decision is being appealed, the Corrective Action Plan is put on hold until the conclusion of the appeal. 8 VAC Sec. 20-81-200(D) and (E); VDOE Parent’s Guide to Special Education Dispute Resolution (2008).
(3) Due Process
- A parent may also file for a due process hearing to resolve disagreements between the parent and the school over the following special education matters:
- educational placement and services, and
- provisions of FAPE for a student. 8 VAC Sec. 20-81-210(A); VA Code Sec. 22.1-214.
- The parent must submit a written request for a due process hearing which should include:
- the child’s name, address,
- the name of the child’s school,
- a description of the disagreement,
- including the facts related to the problem, and
- a proposed resolution to the problem.
- The original request should be mailed to the VDOE Office of Dispute Resolution and Administrative Services and a copy of the complaint should be sent to the local school division. 8 VAC Sec. 20-81-210(F). It is also recommended that the parent keeps another copy of the request for themselves throughout this process.
- The request must be submitted within 2 years of the date that the parent or the local school division knew or should have known about the issue, UNLESS the division incorrectly told the parent that the issue had been resolved when it actually had not or the division inappropriately withheld information from the parent regarding their child. 8 VAC Sec. 20-81-210(E)(1).
- After the due process hearing request is filed, the parent and the local school division must participate in an informal resolution meeting unless both parties agree to waive it. 8 VAC Sec. 20-81-210(Q)(1). This resolution meeting must occur within 15 days of the parent’s complaint, and must be completed within 30 days. 8 VAC Sec. 20-81-210(Q)(2). The 45 day time frame for completing the due process hearing does not include the informal resolution period. 8 VAC Sec. 20-81-210(Q)(3). This resolution session includes the:
1. parents and
2. the local school division.
- While a parent is entitled to bring a lawyer to the resolution meeting, the division may NOT bring an attorney if the parent does not. 8 VAC Sec. 20-81-210(Q)(1)(a)(2).
- The parent may also choose to undergo mediation rather than the resolution process. 8 VAC Sec. 20-81-210(Q)(2)(c). If the parties reach an agreement at the resolution meeting, the agreement must be put in writing. 8 VAC Sec. 20-81-210(Q)(4). Both parties have 3 days to revoke their agreement but in the event they do not, the agreement is binding and enforceable in state or federal court. 8 VAC Sec. 20-81-210(Q)(5).
- A parent has many rights at the due process hearing. The parent must be notified of free or low-cost legal assistance. The child can come to the hearing, and the parent can decide whether the hearing will be open to the public. The hearing must also be fair. This means that the hearing officer must be neutral and that the parent can bring an attorney or advocate. Parents can present witnesses and evidence and can cross-examine witnesses and evidence presented by the district. 8 VAC Sec. 20-81-210(K) and (M); VA Code Sec. 22.1-214(C).
- The due process hearing officer’s decision is due within 45 days of the date the due process hearing request is received by the school district or 45 days following the resolution period. 8 VAC Sec. 20-81-210(Q)(6).
- The decision is binding unless one of the parties takes further legal action and appeals the findings to a state or federal court. 8 VAC Sec. 20-81-210(T). If a complaint raises issues that are also the subject of a pending or concluded due process hearing, the complaint is put on hold or dismissed and the due process hearing decision will apply. 8 VAC Sec. 20-81-200(D)(3).
- Can a special education student be disciplined?
- Students with disabilities are generally expected to follow the same rules as other students, BUT when a disabled student breaks a rule the school must follow extra procedures before disciplining the child. VA Code Sec. 22.1-277.
- If the disabled student’s misbehavior prevents them or other students from learning, the IEP team will consider using positive behavioral interventions, strategies, and supports to address the behavior. This might include developing goals and services specific to the student’s needs as well as testing the student to determine if they need a behavioral intervention plan to address the student’s behavioral needs. 8 VAC Sec. 20-81-160(A)(1) and (2).
- Students with disabilities are subject to the same suspension rules as nondisabled students, except that suspensions of students with disabilities cannot exceed 10 days in a row without a manifestation determination review. Federal law allows for up to 10 days in a row of suspension of special education students without any requirement of a manifestation determination, but for suspensions longer than 10 days, there MUST be a manifestation-determination meeting. 20 U.S.C. Sec. 1415(k)(1)(B); 8 VAC Sec. 20-81-160(D)(1). Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement,” and schools cannot change special education students’ placements without the consent on the parent, or without a manifestation determination meeting, except for certain behaviors such as where the student is involved with:
2. weapons or
3. presents a danger to himself or others. 20 U.S.C. Sec 1415(k)(1)(G); 8 VAC Sec. 20-81-160(C)(5).
- In such circumstances, the district is allowed to place the student in a different education location for up to 45 days. 20 U.S.C. Sec. 1415(k); 8 VAC Sec. 20-81-160(C)(5).
- A manifestation determination meeting is a meeting of the relevant members of the IEP team to determine whether a child with a disability may be expelled or have his/her placement changed for more than 10 school days in a row for misconduct. It must be held within 10 days of the school’s decision to expel the student or change his placement. 8 VAC Sec. 20-81-160(D)(2).
- The team must consider two issues:
1) was the behavior caused by, or did it have a direct and substantial relationship to, the child’s disability, and
2) was the behavior the direct result of the school’s failure to implement the IEP? 8 VAC Sec. 20-81-160(D)(4).
- If the team answers yes to either question, the child CANNOT be expelled and a placement change would require the consent of the parent or a hearing officer’s order. If the IEP team determines that the behavior is a manifestation of the child’s disability, the child must return to his/her original placement, unless the parents and school agree otherwise. The school must also do a behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior. 8 VAC Sec. 20-81-160(D)(6). If the team denies that the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing. The appeal should be resolved within 30 days, and in the meantime, the child remains in the alternate education setting. 20 U.S.C. Sec. 1415(k)(1)(F); 8 VAC Sec. 20-81-160(E).
- Students with disabilities MUST continue to receive educational services during any period of suspension beyond 10 days and during any period of placement in the meantime and during any period of expulsion. 20 U.S.C. Sec. 1412(a)(1) and 1415(k)(1)(D); 8 VAC Sec. 20-81-160(C)(6). The services a child receives under these circumstances must enable him/her to continue to participate in the general curriculum and to continue to progress toward meeting his/her IEP goals and to receive needed behavioral assessments and services. 20 U.S.C. Sec. 1415(k)(1)(D); 8 VAC Sec. 20-81-160(C)(6).
- Can parents see the school records of their special education child?
- A parent is entitled to inspect, review and get a copy of all of a child’s school records. The school MUST provide a parent with copies of a child’s records without unnecessary delay and before any IEP meeting, resolution meeting, or due process hearing. Copies must be provided no more than 45 days after an oral or written request is made. 8 VAC Sec. 20-81-170(G)(1).
- The school can charge a fee for these documents as long as it does not prevent the parent from inspecting and reviewing the records. However, the school CANNOT charge a fee for copying a child’s IEP which it is required to give the parent. 8 VAC Sec. 20-81-170(G)(5).
- Parents are entitled to request correction or removal of information the parent believes to be inaccurate, misleading, or a violation of privacy by filing such a request with the local educational agency. The local educational agency must either grant or deny the request within a reasonable period of time after the request is received. 8 VAC Sec. 20-81-170(G)(6). If the request is denied, the parent may request a hearing to challenge the agency’s denial. 8 VAC Sec. 20-81-170(G)(7). If the appeal is denied, the parent can still submit an objection in writing to the child’s file. 8 VAC Sec. 20-81-170(G)(8)(b).
- Additional Resources:
1. Virginia Department of Education
PO Box 2120
Richmond, VA 23218
James Monroe Building
101 N. 14th Street
Richmond, VA 23219
Virginia Department of Education Parent Guide to Special Education
y en Español
Organizational Chart: http://www.doe.virginia.gov/about/organization_chart.pdf
Superintendent Regions Map: http://www.doe.virginia.gov/directories/va_region_map.pdf
2. PARENT TO PARENT OF VIRGINIA
PARENT TO PARENT OF VIRGINIA PO BOX 38341, RICHMOND VA 23231