8 VAC 20-81-190. Mediation.

Recommendation: Amend the proposed regulation as indicated by inserting the underlined text into section C.

C. The local educational agency or the Virginia Department of Education may establish procedures to offer parents and schools who choose not to use the mediation process an opportunity to meet, at a time and location convenient to them, with a disinterested party who is under contract with a parent training and information center or community parent resource center in Virginia established under § 1471 or § 1472 of the Act; or an appropriate alternative dispute resolution entity. The purpose of the meeting would be to explain the benefits of and encourage the parent(s) to use the mediation process. 300.506(b)(2)) Such a meeting cannot be used to delay or deny a due process hearing.

Justification: The proposed addition to subsection C would ensure clarity regarding whether the meeting referenced in that subsection could delay a due process hearing. The rational stated by VDOE in their Summary of Public Comment document was that the language was already included.  This language is not already included in section C which pertains to a pre-meeting to explain the benefits of mediation and not to the mediation itself.

Recommendation:  Add the following underlined sentence to E(2): 

2. Conclude with a written legally binding agreement if an agreement is reached by the parties to the dispute that,

a.  states that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding;

b. is signed by both the parent and a representative or the local educational agency who has the authority to bind the local education agency, and

c.Is enforceable in any state or federal court of competent jurisdiction and  identifies procedures for incorporating relevant terms of the mediation agreement into the child’s IEP

 Justification:  Although there is nothing in the Act requiring that the IEP be modified to include terms of the legally binding agreement prepared during Mediation, the purpose of the Mediation will often include changes to services or placement which should be incorporated into the IEP where they exist.

Recommendation:  Remove the sentence in section E(3)  which reads as follows:

“Parties to the mediation process may be required to sign a consent form to mediate containing a confidentiality pledge prior to the commencement of the mediation process.”

Justification:  The proposed addition has been removed from the federal regulations as redundant under 300.506(b)(8) and will just add more paperwork to the process.  Also, although the commentary in the Federal Register states that removing 300.506(b)(9) is not intended to prevent States from allowing parties to sign a confidentiality pledge to ensure that discussions during the mediation process remain confidential irrespective of whether the mediation results in a resolution, it does not state that States can require it. 

In addition the word “consent” has recently been added to this section and should be removed as parental consent is no longer required for mediation.  

 8 VAC 20-81-200. Complaint resolution procedures.

Recommendation: Retain language from current regulations regarding D.4.f timeframe required for initiation of corrective action.

f.    Notify the parties in writing of any needed corrective actions and the specific steps that shall be taken by the local educational agency to bring it into compliance with applicable timelines.  The local educational agency will be given 15 business days from the date of notice of noncompliance to respond and initiate corrective action.

Justification: The underlined section is in the current Virginia regulations, but deleted from the proposed regulations.  This language should be retained to ensure a timely response and corrective action.

8 VAC 20-81-210. Due process hearing.

Recommendation: Strike proposed D.4, permitting the VDOE to require that decisions be reissued if there are concerns about readability or if there are conflicts in "data."

3.      Reviewing and analyzing the decisions of special education hearing officers, and the requirement for special education hearing officers to reissue decisions, relative to correct use of citations, readability, and other errors such as incorrect names or conflicting data, but not errors of law that are reserved for appellate review.

Justification: Proposed regulation D.4. oversteps the VDOE's authority in regulating hearing officers.  It permits the VDOE to request that decisions be reissued to improve readability.  Permitting staff to review decisions for "readability" is too vague and arbitrary.  Suggesting edits to a hearing officer decision may change the facts or result in other substantive changes to the decision, which inappropriately invades judicial decision-making authority.  Indeed, a review of the special education regulations in other states in the Mid-Atlantic region does not show that any have given the State Department of Education such review powers.  IDEA provides that the decision of the hearing officer is final and this means that State Department of Education staff do not have the authority to alter it.

The proposed regulation further implies that the VDOE has authority to change decisions when staff  believe there are errors in fact stating that the VDOE may request changes when there are conflicts in "data."  To the extent that the VDOE means that staff could review an opinion for an error in the name of the child's school or his age or address, this needs to be addressed with much narrower and very specific language.  Virginia's regulations must make clear that review of both errors in fact and errors in law are reserved for the courts.  IDEA reserves such review for either impartial appellate hearing officers (which Virginia has rejected), 20 U.S.C.1415(g), or a court of law, 20 U.S.C.1415(I).  Hence, a court, not VDOE staff, should decide whether a hearing officer has committed factual error and if so, how to resolve it.  In many situations, whether there is a factual error will depend on the evidence presented and the officer's decisions about witness credibility.  Moreover, IDEA provides that "A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final," 20 U.S.C. §1415(I), meaning that State Department of Education staff do not have the authority to review it.

Recommendation:  Amend E.1. to make a provision for continuing violations or tolling the statute if an individual is incapacitated or whether the timeline is tolled by the filing of a complaint if amendments to the complaint are necessary.

Justification:  Clarification is needed to prevent individuals from being misinformed with regards on their rights and due process.

Recommendation: Amend H.4.b as indicated

b. Is an employee of the Virginia Department of Education or the local educational agency that is involved in the education and care of the child of an employee of any local education agency in Virginia.

Justification:  This change is necessary to provide fairness in the system.

Recommendation:  Amend H.4.c. as indicated

c. Represents schools or parents in any matter involving special education or disability rights, or is an employee of any parent rights agency or organization, or disability rights agency or organization.

Justification:  These regulations as proposed would allow employees of elementary and secondary school related agencies or organizations serve as hearing officers but restrict employees of parents rights or disability rights agencies from serving as hearing officers.  This represents an inequity and does not allow fairness in the system.

Recommendation:  N.17Responsibilities of the local educational agency. Retain current regulations which require implementation of plans within 45 calendar days of a hearing decision, and also requiring that hearing decisions be implemented while a case is being appealed.

Justification:  It is important that the LEAs implement hearing decisions and not delay their implementation.  Current regulations require the submission of implementation plans within 45 days.  Allowing LEAs to wait to delay up to a year allows for the possibility of denial of FAPE to a student for that time frame.  This can mean a student could be due compensatory education services for an increased time period or even more services as remedy for the lengthy lag in services that can take place under the new time frame.