8 VAC 20-81-120. Children who transfer.

Recommendation:  Retain rights from current regulations by amending proposed regulation  A.2. as indicated.

2.  The new local educational agency shall provide a free appropriate public education to the child, including ensuring that the child has available special education and related services, in consultation with the parent(s), by implementing the child’s IEP from the previous local educational agency, until the new local educational agency either:

a. Adopts [and implements] the child’s IEP from the previous local educational agency with    the parent’s consent; or

Justification:  Current regulations allow for FAPE provision by immediate implementation of the child’s current IEP until a new one can be developed.  The Coalition believes this practice prevents a gap in service provision for students who transfer. Students should not lose this right to FAPE that is being proposed under these new regulations.

Recommendation: Retain current regulations that require parental consent for service provision to transfer students.

4.   If the parent(s) and the local educational agency are unable to agree on interim services or a new IEP, the LEA shall implement the child’s IEP from the previous local education agency.

      The parent(s) or local educational agency may initiate the dispute resolution options of medication or due process to resolve the dispute. During the resolution of the dispute, the local educational agency shall provide FAPE in consultations with the parent(s), including services comparable to those described in the child’s IEP from the previous local educational agency. by the implementation of the child’s IEP from the previous local educational agency.

Justification: Retaining parental consent for IEP development and implementation for transfer students allows parents full participation in the IEP process. Under current regulations the IEP transfers with the student and implementation of the IEP from the previous LEA allows the student the right of stay put during a dispute situation.  For the same reasons that parental consent is important before services are terminated, it is important to have parental consent before a transfer IEP is altered by transferring schools.   This was the rule in Virginia for many years. Moreover, the child's IEP team who knows him/her well has studied the PLOPs and evaluation data and determined that the IEP provides FAPE; the parents have consented. By adopting the child's transfer IEP, the new school district is not left to guess on its own as to FAPE.  Indeed, by adopting the transfer IEP, there is clear guidance on what is FAPE and thus less potential for litigation. Furthermore, A child's stay-put rights should not be randomly decided based on whether his parents move inside or outside the county for work or for any other reason. Many children in foster care and many military families move, and it is important to protect their rights, too.

8 VAC 20-81-130. Least restrictive environment and placement.

 Recommendation: Incorporate alternative methods discussed in federal regulations regarding preschool children and least restrictive environment.  Add section 1.c.

1. Each local educational agency shall ensure: (34 CFR 300.114)

a. That to the maximum extent appropriate, children with disabilities, [aged two to 21, inclusive], including those in public or private institutions or other care facilities, are educated with children without disabilities; and

b. That special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.; and

c. Must explore alternative methods to ensure that the requirements of this section are met for preschool children. Examples of such alternative methods might include placement options in private preschool programs or other community-based settings. Paying for the placement of qualified preschool children with disabilities in a private preschool with children without disabilities is one, but not the only, option available to public agencies to meet the requirements of this section.  Local school divisions that do not operate programs for preschool children without disabilities are not required to initiate those programs solely to satisfy these requirements. Local school divisions that do not have an inclusive public preschool but can provide all the appropriate services and supports must explore alternative methods

Justification: Options for preschool age children must be clarified/identified to ensure children are afforded appropriate educational opportunities.

8 VAC 20-81-150. Private school placement.

Recommendation: Amend language in proposed regulation C.1.a.(1) to include private

preschools that do not qualify as elementary schools.

1. Definitions applicable to this subsection.

a.       The term “private school” includes:

(1) Private, denominational, or parochial schools in accordance with § 22.1-254 of the Code of Virginia that meet the definition of elementary school or secondary school in subdivision 1.of this subsection;

(a) Private, denominational, or parochial preschools that do not qualify as elementary     schools

Justification: IDEA  provides that LEAs have the responsibility to spend a proportionate amount to provide services to children with disabilities who have been parentally-placed in private elementary schools and secondary schools. If the district determines that a private school student with a disability should receive some services, a service plan is formulated for that child. The IDEA regulations state that children ages 3-5 are not considered to be parentally-placed private school children for these purposes unless they are enrolled in a private school that meets the definition of elementary school. Since most private preschools are not in elementary schools, their students would not qualify for any services that may be provided under the IDEA provisions for “parentally-placed private school children.” Since most private preschools are not in elementary schools, without this chance, their students may not qualify for any services that may be provided under the IDEA provisions for “parentally placed private school children.”