8 VAC 20-81-80. Eligibility.

Recommendation: For 8 VAC 20-81-80, eliminate provisions setting forth specific eligibility criteria for each disability (sections J-W, with the exception of “T”).  [Deleted sections are not shown in order to save space.]  Modify language in Section H as follows:

8. For all children suspected of having a disability, local education agencies shall:
   1.  use the applicable criteria adopted by the Virginia Department of Education as outline in this section, for federal definitions of disability category for determining whether a child has a disability; and
   2. have documented evidence that by reason of the disability, as documented through appropriate evaluations and assessments as required under 8 VAC 80-70 the child needs special education and related services.

In the alternative, maintain sections listed above, including recommended language for section “H” with modification for uniformity so that all sections (J-W) read as follows:

Eligibility for a child with (specify disability)

The group may determine that a child as (specify disability) if

a.       the definition of (name disability) is met in accordance with 8 VAC 20-81-10; and

b.      there is an adverse effect on the child’s educational performance due to one or more documented characteristics of the (name disability)

Justification:  Definitions and the language above are sufficient.  New criteria, not required under federal regulations other than for the category of learning disabilities, set forth additional unneeded hurdles for families and students with respect to eligibility determinations.  The new provisions place eligibility teams in the position of having to be diagnosticians, a role for which they are not qualified.   As noted in VDOE’s own response to public comment, the key to establishing eligibility is whether a disability has an adverse impact on the child’ educational performance.  The additional criteria place the focus on the disability vs. the child’s educational needs.  With non-categorical endorsements and focus on outcomes, the focus on establishing very specific criteria beyond federal definitions for disability identification is contra-indicated and will delay the process of identification and require unnecessary evaluations.  It further places the focus on level of disability vs. educational needs.

The provisions are particularly specific with respect to determining eligibility for children with autism spectrum disorder. The language noting that “children with autistic disorder (or Children with Asperger’s disorder) “demonstrate” implies that all children demonstrate all of these characteristics.  This is not accurate, adds to stereotypes of children with autism spectrum disorder and will lead to under identification and unnecessarily conflict with parents.  These provisions will lead to increased litigation, delays in eligibility determinations and battles between “experts” representing the schools vs. families. It will be costly for both families and school divisions and is simply unnecessary. At most, these provisions should be part of a Guidance/Techncial assistance document and not part of an overly restrictive regulations.

Recommendation.  Maintain current state regulations that include developmental delay as a disability category for preschools 2-5 and school aged children 6-9.   Modify language as follows:

[NM]. Eligibility as a child with developmental delay. (34 CFR 300.111(b))

1. [The group may determine that a child has a developmental delay if:

a. ] the local educational agency [may include permits the use of] developmental delay as [one of thea] disability [categories category ]when determining whether a preschool child, aged two by September 30 to six nine, inclusive, is eligible under this chapter; [and] [b.the definition of “developmental delay” is met in accordance with 8VAC20-81-10; or

c. the child has a ]physical or mental condition which has a high probability of resulting in a developmental delay.

[2. Eligibility as a child with a disability for children ages 2 through 5 9 shall not be limited to developmental delay if eligibility can be determined under another disability category.

3. A local educational agency is not required to adopt and use developmental delay as a disability category for any children within its jurisdiction. If the local educational agency permits the use of  developmental delay as a disability category, it shall comply with the eligibility criteria outlined in this section.

Justification.  Current Virginia regulatory language is permissive with respect to utilizing the label of developmental delay for school age children, giving LEAs the flexibility to determine its appropriateness of use. VDOE reports that school divisions that have eliminated the upper range (ages 6-8) report success in providing direct support to children who are at risk of :”academic or behavioral” difficulty in the general education classroom.  VDOE notes that this has reduced the over identification of children and places more emphasis on timely interventions.  However, although many children have a clear diagnosis of disability by this time, that is not always the case and elimination of the DD category is not the appropriate solution for over-identification of children who are minorities or are economically disadvantaged.  If anything, the permissive use of developmental delay should help ensure that these children are also not labeled at too early an age.  When there is no definitive diagnosis but the child clearly needs special education and related services, the label of developmental delay facilitates the provision of services without providing what may be an inaccurate disability “label” to a child at a young age. There is no need to eliminate this flexibility.

8 VAC 20-81-90. Termination of special education and related services.

      Recommendation:  Amend regulation D as indicated:

      Prior to any partial or complete termination of special education and related services, the  local educational agency shall comply with the prior written notice requirements of 8 VAC

20-81-170 C., but parental consent is not required. and obtain parental consent.

Justification: See Justification in 8 VAC 20-81-170 Procedural safeguards

Recommendation: Revise 8 VAC 20-81-90D.2, Summary of Academic Achievement and Functional Performance, to offer the summary if the child exits school prematurely.  

If a child exits school without graduating with a standard or advanced studies high school diploma or reaching the age of 22, including if the child receives a general educational development (GED) credential or an alternative diploma option, the local educational agency shall offer to may provide the child, or parent(s) of the child, with a summary of academic achievement and functional performance when the child exits school. However, if the child resumes receipt of educational services prior to exceeding the age of eligibility, the local educational agency shall provide the child with an updated summary when the child exits, or when the child’s eligibility terminates due to graduation with a standard or advanced studies high school diploma or reaching the age of 22.

Justification: The child or parent may not otherwise be aware that receipt of the summary is an option.  This is a simple solution to make the child or parent aware of the summary and be given an opportunity to elect receipt of the summary.

8 VAC 20-81-100. Free appropriate public education.

Recommendation: Remove language from proposed regulations regarding that restricts services to students based on their age. Retain language in current regulations under section A.1, identifying LEA responsibility for setting goals, with modification on goal date to match new goal date.

A. Age of eligibility.

1. A free appropriate public education shall be available to all children with disabilities who need

special education and related services, aged two to 21, inclusive, who meet the [definition of “]age of eligibility [“ requirements as outlined] in 8VAC20-81-10 and who reside within the jurisdiction of each local educational agency. This includes children with disabilities who are in need of special education and related services even though they have not failed or been retained in a course or grade and are advancing from grade to grade, and students who have been suspended or expelled from school in accordance with the provisions of 8VAC20-81-160. The Virginia Department of Education has a goal of providing full educational opportunity to all children with disabilities aged birth through 21, inclusive, by 2015. Each local educational agency shall establish a goal of providing a full educational opportunity for all children with disabilities from birth to 21, inclusive, residing within its jurisdiction by 2015.(§22.1-213 of the Code of Virginia; 34 CFR 300.101 and 34 CFR 300.109)

Justification: The age restriction added into proposed regulations is intended to prevent students over the age of five in the developmentally delayed category from receiving services and should be removed. Students with developmental delays should be served through age nine as the federal law allows.  Retaining current language requires LEAs to remain engaged, responsible and accountable for setting goals that demonstrate their partnership with students and parents for providing full educational opportunities for students with disabilities.