On behalf of the Fairfax County Council of PTAs (FCCPTA), which represents PTAs in approximately 200 Fairfax County Public Schools, the following comments are submitted by the Executive Board of the FCCPTA to the Virginia Department of Education (VDOE) regarding the final draft revision of the Regulations Governing Special Education Programs for Children with Disabilities in Virginia. 

The Individuals with Disabilities Education Act (IDEA) ensures that children with disabilities have a free appropriate public education available to meet their unique needs and prepare them for further education, employment and independent living.  We believe the current 2002 Regulations Governing Special Education Programs for Children with Disabilities in Virginia are superior in many ways to the proposed regulations.  We further believe that the existing regulations do not merit the wholesale revision that is being proposed in order to comply with the 2004 amendments to IDEA. 

Virginia has long been in the forefront of promoting and protecting the necessary parent-school partnership that ensures children with disabilities are properly identified and served by our local school divisions.  The proposed regulations represent a step backwards in Virginia’s historic guarantee of parental rights in special education.  

1.  Parental Consent to Services for Transfer Students

The FCCPTA opposes the elimination of the current requirement for parental consent prior to providing special education services to transfer students when there is a disagreement on the provision of services.  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

The FCCPTA opposes the elimination of Child Study Committees as currently required in the existing regulations.  The 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. 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)

The FCCPTA opposes 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 below.)

4.  Timelines

The FCCPTA opposes 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.

5.  Developmental Delay

The FCCPTA opposes limiting the developmental delay category to the ages of 3 to 6 and recommends 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.

6.  Eligibility Criteria

The FCCPTA opposes 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.

7.  Accountability for IEP Goals

The FCCPTA opposes elimination of the provision in current regulation that states each LEA “must make a good faith effort to assist the child to achieve the goals, including benchmarks or objectives, listed in the IEP.”  LEAs should actively work toward achieving the growth projected in a child’s annual IEP goals.  If there is no requirement for schools to demonstrate some accountability for IEP goals, then the IEP is meaningless as a measure of success in providing a child with a disability a free and appropriate education.

8.  Discipline Procedures

The FCCPTA opposes 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 – the “11^th day rule.”  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, the FCCPTA opposes 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.

9. Due Process

The FCCPTA opposes 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.

10. LEA participation on local advisory committees

The FCCPTA opposes the change in the proposed regulations which 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 and decisions.