8 VAC 20-81-60. Referral for initial evaluation.

Recommendation: Amend section B.1.d as indicated:

d. Inform the parent(s) of the procedures for the determination of needed evaluation data and request any evaluation information the parent(s) may have on the child;

Justification:  Regarding section B.1.d., VDOE inserted language that is not in current regulations. This may be construed by parents and educators as a demand instead of an option and should be removed.

Recommendation: Add a provision at B.1.h. to provide a child early intervening services upon granting an extension of the 65-day timeline until eligibility is determined. 

h.   The parent and eligibility group may agree in writing to extend the 65-day timeline to obtain

additional data that cannot be obtained within the 65 business days. The child shall receive early intervening services, based upon input from the parent and information gathered to date, for the interim of the extension period until the eligibility determination is made. 

Justification: Parents may feel pressured to agree to extensions in order to avoid being portrayed as uncooperative.  The intervening services would at least provide the child with some kind of intervention during the delay period; as delays will occur.

8 VAC 20-81-70. Evaluation and Reevaluation.

Recommendation: Revise B.4 to remove eligibility decisions from data collection section of regulations.

4. Requirements if additional data are not needed:

a. If the team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child’s educational needs, the local educational agency shall provide the child’s parent(s) with prior written notice, including information regarding:

(1) the determination and the reasons for it; and

(2) the right of the parent(s) to request an evaluation to determine whether the child continues to be a child with a disability and to determine the child’s educational needs.

b. Tthe local educational agency is not required to conduct the evaluation assessment to gather additional information to determine whether the child continues to have a disability and to determine the child’s educational needs, unless the child’s parent(s) requests the assessment for these specific purposes.

c. The child’s parent(s) has the right to resolve a dispute through mediation or due process as

described in this chapter.

54d]. This process shall be considered the evaluation if no additional data are needed.

65. If the team determines not to evaluate a child suspected of a disability, prior written notice, in

accordance with 8VAC20-81-170, shall be given to the parent(s), including the parent's rights to appeal the decision through due process proceedings.

Justification: The function of Section B is to determine what data is needed to make a determination of needed evaluation data for initial evaluation or reevaluation, not to make an eligibility determination at this point.  Including prior written notice, due process, and mediation language changes the scope to proposing changes in eligibility, not collecting data.  Also such changes would compromise the reinstated parental consent protections.  Additionally, Subsection 4.c. is not included with the additional data portion of 34 CFR 300.305(d).  “Assessment” is used in lieu of “evaluation” in 34 CFR 300.305(d). Subsection “4.d.” should be subsection “5” to reflect the evaluation process included in steps 1 through 4. 

Recommendation:.  Revise D to ensure parents and the eligibility group have sufficient data available at eligibility.

D. A written copy of the evaluation report shall be provided at no cost to the parent(s). The evaluation report(s) shall be available to the parent(s) no later than two business days before the

meeting to determine eligibility. (34 CFR 300.306(a)(2))

1. A written copy of the evaluation report(s) shall be provided to the parent(s) prior to or at the meeting where the eligibility group reviews the evaluation report(s) or immediately following the meeting, but no later than 10 days after the meeting.

2. The evaluation report(s) shall be provided to the parent(s) at no cost.

Justification: Parents should be afforded the opportunity to review data before the eligibility meeting to help parents familiarize themselves with the terminology used in the eligibility assessments as well as have time to acclimate to the potentially emotional realization contained in the reports.  As a worst case, parents and all participants making eligibility determination should have the reports available to them at the meeting to assist the group in making an informed decision.  It must not be provided afterward.  Additionally, D.2 is redundant with the first sentence of D.

Recommendation: Delete proposed regulation H.3.

h. The parent and eligibility group may agree in writing to extend the 65 day time

Recommendation: Add a provision at H.3 to provide a child early intervening services upon granting an extension of the 65-day timeline until eligibility is determined. 

3.   The parent and eligibility group may agree in writing to extend the 65-day timeline to obtain

additional data that cannot be obtained within the 65 business days. The child shall receive early intervening services, based upon input from the parent and information gathered to date, for the interim of the extension period until the eligibility determination is made. 

Justification: Parents may feel pressured to agree to extensions in order to avoid being portrayed as uncooperative.  The intervening services would at least provide the child with some kind of intervention during the delay period; as delays will occur.

Recommendation: Clarify LEA responsibility to the parent and child upon graduation.  

I. The local educational agency is not required to evaluate a child with a disability who graduates with a standard diploma or advanced studies diploma. Since graduation is a change in placement, the local educational agency is required to provide the parent with prior written notice in accordance with 8VAC20-81-170. (34 CFR 300.305(e)(2))  The public agency must also provide the child with a summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child’s postsecondary goals.

Justification: 34 CFR 300.305(e)(3) should be included along with 34 CFR 300.305(e)(2) to help ensure the provisions of 34 CFR 300.305(e) are met.