8 VAC 20-81-170. Procedural safeguards.

Recommendation: Delete section indicated.

B. Independent educational evaluation.

            2.  Parental right to evaluation at public expense.

e.  A parent is entitled to only one independent educational evaluation at public expense each time the public educational agency conducts an evaluation component with which the parent disagrees.

Justification:  This section should be deleted.  It goes beyond federal regulations and can be interpreted as more restrictive than the federal regulations in that it would limit the right to an independent educational evaluation.  In order to eliminate litigation we should look to the federal language in this circumstance.

Recommendation: Amend the proposed regulation as indicated.

C.  Prior written notice by the local educational agency; content of notice

1.   Prior written notice shall be given to the parent(s) of a child with a disability within a reasonable time, but in no case more than 24 hours before or after the local educational agency: …

Justification: The term reasonable time leads to misunderstandings and litigation between the LEA and the parent.  Expectations are made clear when there are specific time lines. For example, if there is a necessity for a parent to file a due process regarding the requests made in the IEP meeting, an open ended time frame for the completion of the required prior written notice can be used to delay access to the due process proceeding as the parent is now required to file a detailed complaint.

Recommendation: Retain the current requirements of notice distribution.

D.  Procedural safeguards notice.

      1.   A copy of the procedural safeguards available to the parent(s) of a child with a disability shall be given to the parent(s) by the local educational agency only one time a school year, except that a copy shall be given to the parent(s) upon:                 

            a.  Initial referral for or parent request for evaluation

b.  Review regarding reevaluation of the child;

            bc. If the parent requests an additional copy;

            d.  Each notification of an IEP meeting;       

ce. Receipt of the first state complaint during a school year

df. Receipt of the first request for a due process hearing during a school year; and

e.g. On the date on which the decision is made to make take a disciplinary action, including a disciplinary removal that constitutes a change in placement because of a violation of a code of student conduct.

Justification: It is important to include parents in all decisions regarding the education of their children and to make sure they are aware of their rights. Providing notice at the identified critical junctions of the education process is essential to ensuring parents are informed.  Reevaluation of the child was a trigger event identified in the current Virginia regulations requiring a copy of the procedural safeguards notice.  This was deleted in the current proposed Virginia regulations.  While acknowledging the need to reduce the resources used to produce these safeguards, it is critical that students and parents are fully aware of all their rights and the process of reevaluation is a significant event which could result in termination or substantial change of services.  This event should be retained in the Virginia regulations.  The trigger points should be at the review of data and when the team is determining whether or not to reevaluate the child or what components to evaluate.

Recommendation: Amend proposed regulations as indicated. Timeline should be no more than five business days after request has been made for review of educational records.

G.  Confidentiality of information.

      1.   Access rights.

a.  The local educational agency shall permit the parent(s) to inspect and review any education records relating to their children that are collected, maintained, or used by the local educational agency under this chapter.  The local educational agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing in accordance with 8 VAC 20-81-160 and 8 VAC 20-81-210, or resolution session in accordance with 8 VAC 20-81-210, and in no case more than 45 calendar days  5 business days after the request has been made.

Justification: The 45 calendar day timeline is unnecessarily lengthy.  Usually when a parent is requesting a review of records there is a time sensitive reason for such and there should be no reason that this could not be accommodated within five business days.  The proposed timeline only serves to potentially delay services for a student.

8 VAC 20-81-180. Transfer of rights to students who reach the age of majority.

Recommendation: Change timeline for C.3.d certification that the adult student is incapable of providing informed consent to be consistent with eligibility timelines in the rest of the document.

d.   The certification that the adult student is incapable of providing informed consent may be made as early as 60 calendar days prior to the adult student’s eighteenth birthday or 65 business days 60 calendar days prior to an eligibility meeting if the adult student is undergoing initial eligibility for special education services.

Justification: All eligibility timelines need to be consistent.  A 60 calendar day timeline from referral to eligibility has been recommended by the Coalition.