8 VAC 20-81-110. Individualized education program.

Recommendation: Amend proposed regulation 8 VAC 20-81-110 B.2.d to better align with least restrictive environment (LRE) requirements.

2.    Each local educational agency shall ensure that an IEP:

d.   Is implemented as soon as possible following parental consent to the IEP, not to exceed 10 calendar days

Justification:  Leaving an open ended time line could cause a delay in providing services and cause a disadvantage for children with disabilities, especially when IEP meetings for the school year are typically held one or two months after the school starts in the fall.  Additionally, IEPs are already formatted to prescribe specific dates when services begin and end.  This existing format provides parent awareness and consent when services begin and end.  Proper IEP team construction provides the members who can commit resources and those who are implementing the IEP.  There should be little surprise or need to provide for unexpected delays.  Ten calendar days is a reasonable time limit on implementation of an IEP. 

Recommendation: Amend originally proposed regulation 8 VAC 20-81-110 B by retaining 7, with amendments indicated, to better address lack of progress.

7.   This chapter does not requires that any the local educational agency, teacher, or other person to be held accountable if a child does not achieve the growth projected in the annual goals, including benchmarks or objectives. However, LEAs have an obligation to provide the child with FAPE.  If the child is not meeting his or her expected progress by the middle marking period, the IEP team shall be given IEP meeting notice in accordance with the requirements of  8 VAC 20-81-170 A.1.b to address the lack of progress.  The Virginia Department of Education (VDOE) and local educational agencies are not prohibited from establishing their own accountability systems regarding teacher, school, or agency performance.

Justification: Encourages a collaborative approach to address the child’s lack of progress.

Recommendation: Amend originally proposed regulation 8 VAC 20-81-110 B.10 to ensure parent(s) receive a copy of the amended IEP. 

10. In making changes to a child’s IEP after the annual IEP team meeting for the school year, the parent(s) and the local educational agency may agree not to convene an IEP team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child’s current IEP.

a.    If changes are made to the child’s IEP, the local educational agency shall ensure that the child’s IEP team is informed of those changes;

b.   Upon request, a The parent(s) shall be provided with a revised copy of the IEP with the amendments incorporated.  Implementation requirements of subdivision B.2 and timeline requirements subdivision E.8 also apply;

Justification: Parents need to be made aware that their child’s IEP changed, what those changes are, and when they are being implemented.  Without the recommended changes above, parents may be of a different understanding of what services are being provided to the child.  Parents should have a current record of the IEP since it is core document laying their child's educational program.  The cost to the LEA to ensure the IEP is to the terms agreed upon is minimal, and parents would otherwise likely not know of the option/right to request a copy.

Recommendation: Delete proposed 8 VAC 20-81-110 C.2 that gives determination of school personnel required for IEP meetings to the LEA.

Justification: The guidance from the United States Department of Education applies to excusals and determining the specific personnel, not the representation of IEP team members, to attend the meeting.  http://idea.ed.gov/explore/view/p/,root,dynamic,QaCorner,3, states:

“Although the public agency, not the parent, determines the specific personnel to fill the roles of the public agency's required participants at the IEP team meeting, the public agency remains responsible for conducting IEP meetings that are consistent with the IEP requirements of the Act and the regulations. Accordingly, it may not be reasonable for a public agency to agree or consent to the excusal of the public agency representative if that individual is needed to ensure that decisions can be made at the meeting about commitment of agency resources that are necessary to implement the child's IEP that would be developed, reviewed, or revised at the IEP team meeting.”

Application of the proposed 8 VAC 20-81-110 C.2 would significantly impede upon collaboration to decide upon IEP team representation and ultimately, upon IEP content.  For example, parents can opt to include representation of related service personnel (per C.1.f) if the parent wants to discuss specific related services issues.  Restricting what is allowable education discussion at IEP meetings, by limiting participation of personnel, would be detrimental to the education of the child.

Recommendation: Revise proposed 8 VAC 20-81-110 D.2.b as follows:

2.   A required member of the IEP team may be excused from attending the IEP team meeting, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of curriculum or related services, if:

a.    the parent and the local educational agency consent in writing to the excusal, and

b.   the member submits, in writing , to the parent and the IEP team input into the development of the IEP prior to the meeting. the excused member submits in writing to all IEP team members, sufficient information to aid in the development of the IEP prior to the day of the meeting.  The information shall be forwarded to the parent(s) at the same time as the other IEP team members.

Justification: Requiring IEP team members to be given the sufficient details at the same time facilitates informed parent/team participation.  It is important that parents receive the input far enough in advance of the IEP meeting to adequately consider it, and possibly ask resultant questions from the excused member in advance.  

Recommendation: Revise proposed 8 VAC 20-81-110 E.2.b(2)(c) and add subdivision (d) to clarify who will perform the inviting of specific other agencies.

(2)        For secondary transition, the notice shall also:

(a) Indicate that a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the child;

(b) Indicate that the local educational agency will invite the student; and

(c)  Identify any other agency whom the local educational agency that will be invited to send a representative.

(d) Identify any other agency whom the parent(s) will invite to send a representative.

Justification: Often there is confusion as to who will invite which outside agency, the parent or the school.  This can lead to no representation by an outside agency because each thought the other was responsible for the invitation.  Documenting who will invite each outside agency on the notice will avoid this potential confusion and missed opportunities during transition meetings. 

Recommendation: Amend the proposed change to 8 VAC 20-81-110 E.8. as indicated.  

8. The local educational agency shall give the parent(s) a copy of the child’s IEP at no cost to the parent(s) at the IEP meeting, but no later than 10 calendar days from the date of the IEP meeting.  If the local educational agency is working from a draft, a copy of the draft shall be provided to the parent at the same time the information is made available to school personnel so the parent can follow along and mark up the copy during the IEP meeting if desired. 

Justification: There should not be a delay in providing a copy of the IEP to the parent. The parent draft copy will also facilitate participation during the IEP meeting and provides an opportunity for the parent to keep track of intended changes until receipt of the final copy.  

Recommendation: Amend the proposed regulation 8 VAC 20-81-110 F.5 to be flexible instead of restrictive.

5.   Nothing in this section shall be construed to require prohibit:

a.    the IEP team to include information under one component of a child’s IEP that is already contained under another component of the child’s IEP; or

b.   that additional information be included in the child’s IEP beyond what is explicitly required in this chapter.

Justification: The Discussion section of the federal regulations for Section 300.320(d) states: “Section 300.320(d), consistent with section 614(d)(1)(A)(ii)(I) of the Act, does not prohibit States or LEAs from requiring IEPs to include information beyond that which is explicitly required in section 614 of the Act.”  If additional information in the IEP helps make the IEP easier to follow, that would help ensure FAPE for the child.  If additional information helps provide FAPE, or assists staff in the provision, then that information should not be prohibited from being included.

Recommendation: Retain the current regulations to include benchmarks and short-term objectives in 8 VAC 20-81-110 G.2.

G. Content of the individualized education program. The IEP for each child with a disability shall include:

2.   A statement of measurable annual goals, including benchmarks or short-term objectives, and academic and functional goals designed to:

Justification: As with the justification given for using the proposed regulations in 8 VAC 20-81-110 G.1, measurable terms and relevant performance information are the cornerstone for effectively building, applying, and monitoring IEPs.  Short term objectives provide a more real-time indictor of progress.  As such, any areas of identified lack of progress can be addressed by the IEP team within the child’s school year.  

Recommendation: Under section G.10.a. (2) include the language from the IDEA regulations Preamble which clarifies that IDEA funds may be used for a student to participate in a transitional program on a college campus, if the student’s IEP team includes such services on the IEP.

Justification: Many LEAs and parents are not aware that the IEP team may place a (typically 18 to 21 year old) student who is still eligible for IDEA services in a transition program on a college or university campus and that funding would then be provided for the placement. Virginia has a growing number of high-quality transition and postsecondary programs for students with disabilities. Including this language would clarify that IDEA funds may be used to support these students.