Level I services 

Recommendation: Retain current definition which includes “and related services” for students receiving Level I services.

"Level I services" means the provision of special education and related services to children with disabilities for less than 50% of their instructional school day (excluding intermission for meals). The time that a child receives special education services is calculated on the basis of special education services described in the individualized education program (IEP), rather than the location of services.

Justification: Children receiving Level I services may also be receiving related services.

Other Health Impaired

Recommendation:  Retain arthritis and tuberculosis on the list of examples of health impairments that are cover by this category.

Justification:  The Coalition is unaware of any problems that currently exist due to the inclusion of these two conditions in current Virginia regulations.  Virginia has a longstanding policy of including these two examples in this definition.

Recommendation:  Amend the definition of biological or adoptive parents as indicated.

4.   The biological or adoptive, when attempting to act as the parent under this part and when more than one party is qualified under this section to act as a parent, shall be presumed to be the parent for purposes of this section unless the natural or adoptive parent does not have legal authority to make educational decisions for the child or a judicial decree or order has identified another specific person under subdivision 1.a. through 1.e to make educational decisions on behalf of the child.

5.   Non-custodial parents whose parental rights have not been are entitled to all parent rights and responsibilities available under this chapter, including access to their child’s records.

6.   Custodial step parents have the right to access the child’s record.  Non-custodial step parents do not have the right to access the child’s record.

Justification: The new federal definition protects biological and adoptive parents’ rights by ensuring that they will be the parent when they act as parents. In addition the Coalition also supports adding the italicized language to subsection 4 of this definition so that it clearly

comports with subsection 2. 

Private school children with disabilities

Recommendation: Expand the definition to include children ages three through five who are placed by their parents in private school that do not qualify as elementary schools.

Justification: IDEA 2004 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 three through five 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, without this change their students may not qualify for any services that may be provided under the IDEA provisions for “parentally-placed private school children.” (CFR 300.132)

Specific learning disability

Recommendation: Remove the first sentence regarding dyslexia.

"Specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; of mental retardation; of environmental, cultural, or economic disadvantage.

1.  Dyslexia is distinguished from other learning disabilities due to its weakness occurring at    the phonological level. Dyslexia is a specific learning disability that is neurobiological in origin. It is characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities. These difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction. Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.

Justification: The paragraph regarding dyslexia improperly narrows the requirements of IDEA 2004 and the federal regulations.  It is absent from federal law.  It may result in the denial of eligibility to Virginia students who have a right to IDEA eligibility under federal requirements. 

Supplementary aids and services

Recommendation: Insert the following underlined statement into definition:

“Supplementary aids and services” means aids, services, and other supports that are provided in general education classes or other education-related settings to enable children with disabilities to be educated with children without disabilities to the maximum extent appropriate in accordance with this chapter.

Supplementary aids and services includes, but is not limited to: providing preferential seating; frequent breaks; extended or additional testing time; allowing tests to be dictated; a functional behavioral assessment and behavioral intervention plan; one-to-one aides; and, interpreting services to students with disabilities.

Justification: The provision of supplementary aids and services is crucial to ensuring that the IDEA’s least restrictive environment (LRE) mandate is carried out. Including a non-exhaustive list of examples of supplementary aids and services gives guidance to schools and parents regarding the types of supplementary aids and services that may be provided to students with disabilities to ensure they receive a FAPE in the least restrictive environment (LRE). It also brings the definition of supplementary aids and services in line with the definition of related services, which has long included a non-exhaustive list of examples of related services.

Timely manner

Recommendation: Revise the definition of “Timely manner” as follows:

“Timely manner” if used with reference to the requirement for National Instructional Materials Accessibility Standard 8 VAC 20-81-230.K means that the local educational agency shall take all reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials before, or at least at the same time as other children receive instructional materials.

Justification: Timely manner should not be limited to use of National Instructional Materials Accessibility Standard (NIMAS), but tied to the provision of proper instructional materials at the same time as other children, regardless of what agency is contracted or method LEAs adopt.  School staff need to ensure that all materials students with disabilities need to keep up with the class are available at or before the time their peers are learning the same information.  Old textbooks and supplemental materials the teacher uses, or supplemental material that a child may use (such as a dictionary), may not be available through NIMAS.