idea 2004: the federal implementing regulations virginia department of education office of dispute...

IDEA 2004: The Federal IDEA 2004: The Federal Implementing RegulationsImplementing Regulations

Virginia Department of EducationVirginia Department of EducationOffice of Dispute Resolution &Office of Dispute Resolution &

Administrative ServicesAdministrative Services

22

IDEA

Local Policies & Procedures



StateRegulations Federal

Regulations

33

How Did We Get Here?How Did We Get Here?

December 3, 2004December 3, 2004 - Individuals with - Individuals with Disabilities Education Improvement Act of Disabilities Education Improvement Act of 2004 (IDEA 2004) P.L. 108-446 2004 (IDEA 2004) P.L. 108-446 Signed by President Bush.Signed by President Bush. Some elements such as “Highly Qualified” Some elements such as “Highly Qualified”

effective.effective. July 1, 2005July 1, 2005 – All IDEA 2004 provisions in – All IDEA 2004 provisions in

effect.effect.

44

Regulatory ProcessRegulatory Process

August 14, 2006August 14, 2006 – USDOE published – USDOE published final regulations.final regulations.

October 13, 2006October 13, 2006 – The final regulations – The final regulations become effective.become effective.

October 2006October 2006 – Initiate the revision of – Initiate the revision of the state special education regulations.the state special education regulations.

66

Key PointsKey Points The September 2006 Guidance Document: The September 2006 Guidance Document:

Outlines the key changes in the federal Outlines the key changes in the federal regulations.regulations.

Is a companion to the May 2005 Guidance Is a companion to the May 2005 Guidance Document, which outlined the key provisions Document, which outlined the key provisions of IDEA 2004.of IDEA 2004.

To guide implementation, it references non-To guide implementation, it references non-regulatory guidance, USDOE’s “Analysis of regulatory guidance, USDOE’s “Analysis of Comments and Changes” section of the new Comments and Changes” section of the new federal regulations.federal regulations.

77

NOTENOTE

Virginia Regulations which were not Virginia Regulations which were not impacted by IDEA 2004 and the new impacted by IDEA 2004 and the new federal regulations remain in effect.federal regulations remain in effect.

88

DEFINITIONS

99

DefinitionsDefinitions The new regulations cite to the following The new regulations cite to the following

terms, which are defined in other statutes: terms, which are defined in other statutes: Dangerous WeaponDangerous Weapon Highly QualifiedHighly Qualified Homeless ChildrenHomeless Children Institution of HigherInstitution of Higher

EducationEducation

Limited English ProficientLimited English ProficientScientifically basedScientifically based

ResearchResearchSerious Bodily InjurySerious Bodily InjuryUniversal DesignUniversal Design

The definition for each of these terms is reprinted in the Analysis Section of the federal regulations for reference.

1010

DefinitionsDefinitionsThe The Analysis Analysis Section distinguishes the terms Section distinguishes the terms “consent” and “agree.” Both are used in the “consent” and “agree.” Both are used in the

federal regulations. federal regulations. p. 46629p. 46629

ConsentConsent Agree/AgreementAgree/AgreementThe parent must be fully The parent must be fully

InformedInformedAn understanding between An understanding between

the parent and LEAthe parent and LEA

Relevant information for the Relevant information for the activity for which consent is activity for which consent is

sought must be provided in the sought must be provided in the parent’s native languageparent’s native language

Not Not requiredrequired to be in to be in writing, unless stated. writing, unless stated.

***Documentation of ***Documentation of agreement is, however, agreement is, however,

ENCOURAGEDENCOURAGED..Consent must be in Consent must be in WRITINGWRITING

1111

Developmental DelayDevelopmental Delay

§ 300.8 (b)§ 300.8 (b)

Virginia has the option of adopting a definition Virginia has the option of adopting a definition of developmental delay, but LEAs are not of developmental delay, but LEAs are not required to use the term.required to use the term. Federal Regulations define DD as ages 3-9, or any Federal Regulations define DD as ages 3-9, or any

subset of the age range.subset of the age range. If a LEA chooses to use the term, it must If a LEA chooses to use the term, it must

conform to both Virginia’s definition and age conform to both Virginia’s definition and age range, currently:range, currently: Preschool: Ages 2 to 5 (Virginia required/specific)Preschool: Ages 2 to 5 (Virginia required/specific) School-aged: Ages 5 to 8School-aged: Ages 5 to 8

1212

HQ Special Education TeacherHQ Special Education Teacher§ 300.18§ 300.18

Virginia may develop a separate HVirginia may develop a separate High igh Objective Uniform State Standard of Objective Uniform State Standard of EvaluationEvaluation (HOUSSE) for special education (HOUSSE) for special education teachers but cannot lower the standard for the teachers but cannot lower the standard for the content knowledge requirements.content knowledge requirements.

Virginia may develop a separate HOUSSE Virginia may develop a separate HOUSSE for special education teachers that includes for special education teachers that includes single HOUSSE evaluations that cover single HOUSSE evaluations that cover multiple subjects.multiple subjects.

1313

NOTENOTE:: Children with disabilities who are suspended or Children with disabilities who are suspended or

expelled from their current placement must expelled from their current placement must continue to be taught by highly qualified continue to be taught by highly qualified teachers.teachers.

Each Title 1 school must provide each parent Each Title 1 school must provide each parent timely notice that the parent’s child has been timely notice that the parent’s child has been assigned, or has been taught for 4 or more assigned, or has been taught for 4 or more consecutive weeks by a teacher who is not highly consecutive weeks by a teacher who is not highly qualified, including special education teachers qualified, including special education teachers who teach core academic subjects.who teach core academic subjects.


1414


NOTENOTE:: Veteran regular education teachers reassigned Veteran regular education teachers reassigned

to special education are considered “new to the to special education are considered “new to the profession” and must meet those standards to profession” and must meet those standards to be highly qualified as a special education be highly qualified as a special education teacher.teacher.

Itinerant special education teachers must meet Itinerant special education teachers must meet the highly qualified requirements.the highly qualified requirements.

1515

Other Health ImpairedOther Health Impaired§ 300.8(c)(9)(i)§ 300.8(c)(9)(i)

The definition has been revised to The definition has been revised to include Tourette Syndrome, a include Tourette Syndrome, a neurological condition, as a chronic neurological condition, as a chronic or acute health issue.or acute health issue.

1616

ParentParent§ 300.30§ 300.30

Revisions to the definition:Revisions to the definition: Discusses “Biological” v. “natural” parents.Discusses “Biological” v. “natural” parents. Delineates when a guardian may be considered a parent. --- It Delineates when a guardian may be considered a parent. --- It

is based on the nature of the guardian’s appointment. is based on the nature of the guardian’s appointment. (see p. (see p. 46556)46556)

Identifies school divisions’ responsibilities in Identifies school divisions’ responsibilities in designating who is a parent for IDEA purposes.designating who is a parent for IDEA purposes.

NOTENOTE:: Court-appointed advocates cannot attend due process Court-appointed advocates cannot attend due process

resolution meetings in place of a parent, resolution meetings in place of a parent, unlessunless:: The LEA has appointed the advocate as a surrogate parent; or The LEA has appointed the advocate as a surrogate parent; or The LEA determines that the advocate meets the definition of The LEA determines that the advocate meets the definition of

“parent.”“parent.”

1717

Related ServicesRelated Services § 300.34(b)§ 300.34(b)

A “Surgically implanted device”A “Surgically implanted device” -- -- ““Related services” do not include the optimization or Related services” do not include the optimization or

mapping, maintenance, or replacement of the device.mapping, maintenance, or replacement of the device. Children must still receive those related services necessary Children must still receive those related services necessary

for FAPE, as determined by the IEP team.for FAPE, as determined by the IEP team.

LEAs must ensure that the external components of the LEAs must ensure that the external components of the device are functioning properly.device are functioning properly.

The LEA must “appropriately monitor and maintain” The LEA must “appropriately monitor and maintain” medical devices necessary to maintain the child’s medical devices necessary to maintain the child’s health and safety (ie. breathing, nutrition, operation of health and safety (ie. breathing, nutrition, operation of other bodily functions) while the child is transported to other bodily functions) while the child is transported to and from school or is at school.and from school or is at school.

1818

Related Services Related Services § 300.34 (c)§ 300.34 (c)

““Interpreting Services” includes: Interpreting Services” includes: Transcription Services (ie. CART, C-Print, Type Transcription Services (ie. CART, C-Print, Type

Well.)Well.) Special Interpreting Services for deaf-blind Special Interpreting Services for deaf-blind

students.students. ““Orientation & Mobility” includes teaching Orientation & Mobility” includes teaching

children who are blind or VI to use a service children who are blind or VI to use a service animal.animal.

The distinction between “school nurse The distinction between “school nurse services” and “school health services” is services” and “school health services” is clarified.clarified.

1919

Services PlanServices Plan§ 300.37§ 300.37

A written statement that describes the A written statement that describes the special education and related services that special education and related services that an LEA will provide to parentally-placed an LEA will provide to parentally-placed private school children with disabilities private school children with disabilities who have been designated to receive who have been designated to receive equitable services.equitable services.

2020

Supplementary Aids and Services Supplementary Aids and Services § 300.42§ 300.42

These supports must also be provided in These supports must also be provided in extracurricular and nonacademic settings extracurricular and nonacademic settings to enable children with disabilities to be to enable children with disabilities to be educated with non-disabled children to educated with non-disabled children to the maximum extent appropriate.the maximum extent appropriate.

2121

FREE APPROPRIATE FREE APPROPRIATE PUBLIC EDUCATION (FAPE)PUBLIC EDUCATION (FAPE)

2222

Advancing Grade to Grade Advancing Grade to Grade § § 300.101; 300.111(c)(1)§ § 300.101; 300.111(c)(1)

FAPE must be available to children with FAPE must be available to children with disabilities even if the child “has not failed or disabilities even if the child “has not failed or been retained in a course or grade,” and is been retained in a course or grade,” and is advancing from grade to grade.advancing from grade to grade.

Children who are suspected of having a Children who are suspected of having a disability, even though they are advancing disability, even though they are advancing from grade to grade, must be included in child from grade to grade, must be included in child find.find.

2323

PreschoolersPreschoolers§ 300.102(a)(4)§ 300.102(a)(4)

Preschool-aged children with disabilities, Preschool-aged children with disabilities, who are receiving early intervention who are receiving early intervention services under Part C, are not eligible for services under Part C, are not eligible for special education and related services special education and related services under Part B.under Part B.

2424

Exception to FAPE Exception to FAPE § 300.102(a)(3)(iv)§ 300.102(a)(3)(iv)

Children with disabilities who have graduated Children with disabilities who have graduated from high school with a regular diploma are no from high school with a regular diploma are no longer entitled to FAPE. longer entitled to FAPE. HoweverHowever,, a “regular a “regular high school diploma” does not include an high school diploma” does not include an alternative degree that is not fully aligned with alternative degree that is not fully aligned with the State’s academic standards.the State’s academic standards.

In Virginia, students with a GED, Modified In Virginia, students with a GED, Modified Standard Diploma, or Special Diploma, who Standard Diploma, or Special Diploma, who are age-eligible, are still entitled to FAPE.are age-eligible, are still entitled to FAPE.

2525

Nonacademic ServicesNonacademic Services§ § 300.107(a); 300.117§ § 300.107(a); 300.117

Each school division must provide a student Each school division must provide a student with a disability an equal opportunity to with a disability an equal opportunity to

participate in nonacademic and participate in nonacademic and extracurricular services and activities, extracurricular services and activities,

including providing supplementary aids and including providing supplementary aids and services, as determined appropriate and services, as determined appropriate and

necessary by the child’s IEP team.necessary by the child’s IEP team.

* Also note the LRE implications, at * Also note the LRE implications, at § 300.114(a).§ 300.114(a).

2626

Physical EducationPhysical Education § 300.108(a)§ 300.108(a)

The FAPE entitlement includes the The FAPE entitlement includes the opportunity to participate in physical opportunity to participate in physical education (PE) if PE is provided to education (PE) if PE is provided to all children in the same grades.all children in the same grades.

NOTE:NOTE:

If PE is part of the child’s IEP, the LEA If PE is part of the child’s IEP, the LEA has to provide it even though it is not has to provide it even though it is not provided to non-disabled children.provided to non-disabled children.

2727

Hearing Aids & External ComponentsHearing Aids & External Components of Surgically Implanted Medical Devicesof Surgically Implanted Medical Devices

§ 300.113(a) & (b)§ 300.113(a) & (b)

LEAs must ensure that the external LEAs must ensure that the external components of surgically implanted medical components of surgically implanted medical devices are functioning properly. devices are functioning properly. HoweverHowever……

The LEA is NOT responsible for the post-The LEA is NOT responsible for the post-surgical maintenance, programming or surgical maintenance, programming or replacement of the surgically implanted device replacement of the surgically implanted device or its external components.or its external components.

2828

LEAST RESTRICTIVE LEAST RESTRICTIVE ENVIRONMENT (LRE)ENVIRONMENT (LRE)

2929

Nonacademic ServicesNonacademic Services§ § 300.107(a); 300.117§ § 300.107(a); 300.117

Each school division must provide a student Each school division must provide a student with a disability an equal opportunity to with a disability an equal opportunity to

participate in nonacademic and participate in nonacademic and extracurricular services and activities, extracurricular services and activities,

including providing supplementary aids and including providing supplementary aids and services, as determined appropriate and services, as determined appropriate and

necessary by the child’s IEP team.necessary by the child’s IEP team.

* Also note the LRE implications, at * Also note the LRE implications, at § 300.114(a).§ 300.114(a).

3030

General GuidanceGeneral Guidance OSEP distinguishes between “placement” and OSEP distinguishes between “placement” and

“location.”“location.” The LEA is responsible for the site/specific The LEA is responsible for the site/specific

place/location of the service.place/location of the service. The IEP team is responsible for determining The IEP team is responsible for determining

placement for the provision of special education placement for the provision of special education and related services.and related services.

The LRE requirements apply to all children The LRE requirements apply to all children with disabilities, including preschool children with disabilities, including preschool children who are entitled to FAPE.who are entitled to FAPE.

LRE and Discipline Placements -- LRE and Discipline Placements -- See p. 46586See p. 46586

3131

PARENTALLY-PLACED PARENTALLY-PLACED PRIVATE SCHOOL PRIVATE SCHOOL

STUDENTSSTUDENTS

3232

General GuidanceGeneral Guidance

The new Federal Regulations underscore the The new Federal Regulations underscore the LEA’s responsibility for parentally-placed LEA’s responsibility for parentally-placed students with disabilities attending private students with disabilities attending private schools located within its jurisdiction.schools located within its jurisdiction.

Appendix B – Provides guidance regarding Appendix B – Provides guidance regarding the calculation of a LEA’s “Proportionate the calculation of a LEA’s “Proportionate Share,” the amount of Part B funds to be Share,” the amount of Part B funds to be expended on children with disabilities who expended on children with disabilities who are parentally-placed in private schools.are parentally-placed in private schools.

3333

Child FindChild Find§ 300.131§ 300.131

The cost for child find, including individual The cost for child find, including individual evaluations, may evaluations, may NOTNOT be considered in the be considered in the calculation of the expenditure of the calculation of the expenditure of the proportionate share of federal funds.proportionate share of federal funds.

The child find process must be completed in a The child find process must be completed in a time period comparable to that of students time period comparable to that of students attending public schools in the LEA.attending public schools in the LEA.

3434

Additional ProvisionsAdditional Provisions Responsibility for a privately-placed child with Responsibility for a privately-placed child with

a disability rests with the LEA where the a disability rests with the LEA where the private school is located – even if the student private school is located – even if the student resides out of state/out of the country. resides out of state/out of the country. § 300.131 § 300.131 (f)(f)

Parental consent is required for disclosure of Parental consent is required for disclosure of the education records of parentally-placed the education records of parentally-placed private school children between LEAs. private school children between LEAs. § 300.622 § 300.622 (b)(3).(b)(3).

LEAs, not State Educational Agencies (SEAs), LEAs, not State Educational Agencies (SEAs), are responsible for developing services plans. are responsible for developing services plans. § 300.132(b).§ 300.132(b).

3535

Child FindChild Find§ 300.300(d)(4)§ 300.300(d)(4)

Parents who place their children in private Parents who place their children in private schools have the option of not participating in schools have the option of not participating in the LEA’s child find activities under § the LEA’s child find activities under § 300.131.300.131.

If the parent of a child who is home schooled or If the parent of a child who is home schooled or privately placed does not provide consent for an privately placed does not provide consent for an initial evaluation or reevaluation:initial evaluation or reevaluation: Due process procedures may not be used to obtain Due process procedures may not be used to obtain

consent; and consent; and The LEA is not required to consider the child for The LEA is not required to consider the child for

equitable services.equitable services.

3636

Preschoolers Preschoolers § 300.133(a)(2)(ii)§ 300.133(a)(2)(ii)

Provisions for parentally-placed children Provisions for parentally-placed children apply to preschoolers with disabilities, if they apply to preschoolers with disabilities, if they are enrolled in a private school that meets the are enrolled in a private school that meets the definition of elementary school definition of elementary school in §in § 300.13. 300.13.

Virginia distinguishes between day care Virginia distinguishes between day care centers and preschools. Preschools:centers and preschools. Preschools: Provide educational instruction; andProvide educational instruction; and Are counted as instructional settings under Section Are counted as instructional settings under Section

619 of the Annual Plan.619 of the Annual Plan.

3737

Carry-over FundingCarry-over Funding§ 300.133(a)(3)§ 300.133(a)(3)

If an LEA has not spent all of its “proportionate If an LEA has not spent all of its “proportionate share” amount providing equitable services to share” amount providing equitable services to parentally-placed private school children with parentally-placed private school children with

disabilities by the end of the fiscal year for disabilities by the end of the fiscal year for which the funds were appropriated, the LEA which the funds were appropriated, the LEA

must obligate the remaining funds for services must obligate the remaining funds for services during a carry-over period, lasting one during a carry-over period, lasting one

additional year.additional year.

3838

Complaints Complaints § 300.136 (b) &(c)§ 300.136 (b) &(c)

A private school official may file a A private school official may file a complaint if the LEA did not:complaint if the LEA did not: Engage in meaningful & timely consultation; orEngage in meaningful & timely consultation; or Give due consideration to the official’s views.Give due consideration to the official’s views.

In Virginia, such complaints will be resolved In Virginia, such complaints will be resolved using the Complaint Resolution Procedures.using the Complaint Resolution Procedures.

3939

Dispute Resolution Dispute Resolution § 300.140(b)(2)§ 300.140(b)(2)

A state complaint may allege a violation of the A state complaint may allege a violation of the procedural mandates regarding parentally-procedural mandates regarding parentally-placed private school students.placed private school students.

However, to allege a violation of the child find However, to allege a violation of the child find requirements in § 300.131, a due process requirements in § 300.131, a due process hearing request must be filed with the LEA hearing request must be filed with the LEA where the private school is located.where the private school is located.

Due Process may also be used regarding the Due Process may also be used regarding the evaluation and consent requirements.evaluation and consent requirements.

4040

Additional GuidanceAdditional Guidance HQ requirementsHQ requirements do not apply to private school do not apply to private school

teachers, even if serving publicly-placed children, teachers, even if serving publicly-placed children, or providing equitable services to parentally-or providing equitable services to parentally-placed private school children.placed private school children. § 300.138 (a)(1)§ 300.138 (a)(1)

The LEA where the private school is located may The LEA where the private school is located may not seek reimbursement from the LEA of not seek reimbursement from the LEA of residence for the evaluation cost or request the residence for the evaluation cost or request the LEA of residence to do the evaluation. LEA of residence to do the evaluation. p. 46592p. 46592

Reevaluation is part of the LEA’s child find Reevaluation is part of the LEA’s child find responsibilities. responsibilities. p. 46593p. 46593

4141

Additional GuidanceAdditional Guidance

If a child is determined eligible by the LEA If a child is determined eligible by the LEA where the private school is located, the LEA of where the private school is located, the LEA of residence must make FAPE available unless residence must make FAPE available unless the parent makes clear the intention to keep the the parent makes clear the intention to keep the child in the private school in another LEA. child in the private school in another LEA. p. p. 4659346593

If a private school straddles two LEAs, VDOE If a private school straddles two LEAs, VDOE must determine which LEA is responsible. must determine which LEA is responsible. p. p. 4659446594

4242


Home-schooled ChildrenHome-schooled Children -- Whether considered -- Whether considered parentally-placed private school children is a parentally-placed private school children is a matter of State law. matter of State law. p. 46594p. 46594

Virginia Regulations currently include these children.Virginia Regulations currently include these children. IEEIEE -- If a parent of a parentally-placed child -- If a parent of a parentally-placed child

disagrees with an evaluation obtained by the LEA disagrees with an evaluation obtained by the LEA where the private school is located, the parent may where the private school is located, the parent may request an IEE at public expense with that LEA. request an IEE at public expense with that LEA. p. p. 4659746597

4343

METHODS OF ENSURING METHODS OF ENSURING SERVICESSERVICES

4444

Public Benefits/InsurancePublic Benefits/Insurance§ 300.154 (d)§ 300.154 (d)

To access public benefits or insurance for children with To access public benefits or insurance for children with disabilities, the LEA must:disabilities, the LEA must: Obtain parental consent Obtain parental consent each timeeach time that the LEA is accessing that the LEA is accessing

the parent’s public benefits or insurance; andthe parent’s public benefits or insurance; and Notify the parents that refusal to consent to access of public Notify the parents that refusal to consent to access of public

benefits or insurances does not relieve the LEA’s responsibility benefits or insurances does not relieve the LEA’s responsibility to ensure all required services are provided at no cost.to ensure all required services are provided at no cost.

NOTE:NOTE: Currently, Virginia’s Regulations require parental

consent and notification only if the LEA is accessing the parent’s insurance. The new requirements apply to both public benefits and insurance.

4545

EARLY INTERVENING EARLY INTERVENING SERVICESSERVICES

4646


A child previously identified as being a child A child previously identified as being a child with a disability, who currently does not need with a disability, who currently does not need special education and related services, may special education and related services, may receive early intervening services. receive early intervening services. p. 46626p. 46626

Early intervening services are for children K-Early intervening services are for children K-12, with emphasis on children K-3. 12, with emphasis on children K-3. p. 46627p. 46627

Children receiving or being considered for Children receiving or being considered for early intervening services are not entitled to early intervening services are not entitled to FAPE.FAPE. Therefore, they are not entitled to procedural Therefore, they are not entitled to procedural

safeguards (ie. notice, consent) safeguards (ie. notice, consent) p. 46626p. 46626

4747

PARENTAL CONSENTPARENTAL CONSENT

4848

Initial Evaluation Initial Evaluation § 300.300 (a)(2)§ 300.300 (a)(2)

Ward of the StateWard of the State:: If the student is If the student is notnot living with the parent, and the living with the parent, and the

LEA is seeking consent for an LEA is seeking consent for an initialinitial evaluation, evaluation, the LEA is the LEA is not requirednot required to obtain informed to obtain informed parental consent for the evaluation, parental consent for the evaluation, oror appoint a appoint a surrogate to do the evaluation, surrogate to do the evaluation, IFIF:: The LEA has made reasonable efforts to obtain parental The LEA has made reasonable efforts to obtain parental

consent, but the parent’s whereabouts are unknown;consent, but the parent’s whereabouts are unknown; The rights of the parent have been terminated; The rights of the parent have been terminated; OROR A judge has subrogated the parent’s rights & appointed A judge has subrogated the parent’s rights & appointed

an individual to represent the child, and the appointed an individual to represent the child, and the appointed person has consented to the initial evaluation.person has consented to the initial evaluation.

4949


Ward of the StateWard of the State: : p. 46630-46631p. 46630-46631

Reevaluations – The consent exception Reevaluations – The consent exception does does notnot apply. A surrogate should already have apply. A surrogate should already have been appointed. been appointed.

The appointment of a surrogate should move The appointment of a surrogate should move forward in accordance with the procedures for forward in accordance with the procedures for surrogate parents, at § 300.519 (b) – (h).surrogate parents, at § 300.519 (b) – (h).

5050

Refusal to ConsentRefusal to Consent§ 300.300 (a)(3) & (c)(1)§ 300.300 (a)(3) & (c)(1)

If a parent refuses or fails to consent to an If a parent refuses or fails to consent to an evaluation, VDOE and/or the LEA would evaluation, VDOE and/or the LEA would not violate its procedural requirements, if not violate its procedural requirements, if it opts not to pursue the evaluation.it opts not to pursue the evaluation. However, the LEA However, the LEA maymay use mediation or use mediation or

due process to obtain consent.due process to obtain consent.

5151

Refusal to Consent Refusal to Consent § 300.534(c)(1)§ 300.534(c)(1)

NOTE:NOTE: For Discipline PurposesFor Discipline Purposes, if a parent has , if a parent has

refused either an evaluation, or services, refused either an evaluation, or services, the LEA is not deemed to have the LEA is not deemed to have knowledge that a child is a child with a knowledge that a child is a child with a disability. Therefore, the child could not disability. Therefore, the child could not assert the procedural protections due to a assert the procedural protections due to a child with a disability during the child with a disability during the disciplinary process.disciplinary process.

5252

Documenting ConsentDocumenting Consent§§ 300.300(d)(5); 300.322(d)§§ 300.300(d)(5); 300.322(d)

An LEA must document its attempts to obtain parental An LEA must document its attempts to obtain parental consent via the following:consent via the following: Detailed records of telephone calls made/attempted and the Detailed records of telephone calls made/attempted and the

results of those calls;results of those calls; Copies of correspondence sent to the parents and any Copies of correspondence sent to the parents and any

response received; andresponse received; and Detailed records of visits made to the parent’s home or place Detailed records of visits made to the parent’s home or place

of employment and the results of those visits.of employment and the results of those visits. Virginia may permit electronic or digital signatures for Virginia may permit electronic or digital signatures for

parental consent, but safeguards must be in place to parental consent, but safeguards must be in place to protect the integrity of the process. The issue will be protect the integrity of the process. The issue will be addressed during the Regulations Revision. addressed during the Regulations Revision. p. 46629p. 46629

5353

Consent for Initial Services Consent for Initial Services § 300.300(b)(4)(ii)§ 300.300(b)(4)(ii)

Added language strengthens the IDEA Added language strengthens the IDEA requirement relieving LEAs of any requirement relieving LEAs of any potential liability for failure to convene potential liability for failure to convene an IEP team meeting or develop an IEP an IEP team meeting or develop an IEP for a child whose parents refuse consent, for a child whose parents refuse consent, or fail to respond to a request to consent or fail to respond to a request to consent to the initial provision of services.to the initial provision of services.

5454


The LEA may convene an IEP team & develop The LEA may convene an IEP team & develop an IEP to inform the parent about prospective an IEP to inform the parent about prospective services. services. p.46634p.46634

VirginiaVirginia – I– If a parent revokes consent, it is not f a parent revokes consent, it is not retroactive. It does not negate an action that retroactive. It does not negate an action that occurred after consent received, but before occurred after consent received, but before revocation. revocation. p.46633p.46633

USDOE is planning to issue additional regulatory USDOE is planning to issue additional regulatory guidance on this issue.guidance on this issue.

5555

Consent for ReevaluationConsent for Reevaluation““Failure to respondFailure to respond” -- In spite of the LEA’s ” -- In spite of the LEA’s efforts to obtain consent for an evaluation, the efforts to obtain consent for an evaluation, the parent has not indicated consent or refusal to parent has not indicated consent or refusal to

consent to the evaluation.consent to the evaluation. p. 46632p. 46632

Virginia:Virginia: If a parent If a parent fails to respondfails to respond – An LEA must proceed – An LEA must proceed

to evaluate the student as if consent was provided.to evaluate the student as if consent was provided. If the parent If the parent refuses consentrefuses consent – An LEA may use – An LEA may use

mediation or due process, as outlined in the federal mediation or due process, as outlined in the federal regulations.regulations.

5656

Refusal to ConsentRefusal to Consent§ 300.300 (d)(4)§ 300.300 (d)(4)

Home-schooled or Parentally-PlacedHome-schooled or Parentally-Placed:: For these students, LEAs may not use For these students, LEAs may not use

mediation or due process to obtain mediation or due process to obtain consent for an evaluation if the parent consent for an evaluation if the parent refuses, or fails to provide consent.refuses, or fails to provide consent.

HoweverHowever, the LEA is not required to , the LEA is not required to consider the child eligible for equitable consider the child eligible for equitable services.services.

5757

Review of Existing DataReview of Existing Data§ 300.300(d)(1)(i)§ 300.300(d)(1)(i)

As in the Virginia Regulations, parental As in the Virginia Regulations, parental consent is not required consent is not required ifif:: Reviewing existing data as part of an Reviewing existing data as part of an

evaluation; or evaluation; or Administering a test/evaluation that is Administering a test/evaluation that is

administered to all children -- unless, before administered to all children -- unless, before administration of that test or evaluation, administration of that test or evaluation, consent is required for all children.consent is required for all children.

5858

EVALUATIONS ANDEVALUATIONS ANDREEVALUATIONSREEVALUATIONS

5959

Evaluation TimelinesEvaluation Timelines Virginia Timeline: SAME – Virginia Timeline: SAME – 65 business days65 business days to to

complete the complete the evaluation & eligibility processevaluation & eligibility process, triggered , triggered by the receipt of referral by the SPED administrator or by the receipt of referral by the SPED administrator or designee.designee.

IDEA & the Federal Regulations included a IDEA & the Federal Regulations included a 60 60 calendar dayscalendar days default timeline for the default timeline for the completion of an completion of an evaluationevaluation, triggered upon parent consent. However, , triggered upon parent consent. However, states have the flexibility to establish different states have the flexibility to establish different timeframes. timeframes. p. 46637p. 46637 Virginia will retain its timeline until the issue is considered Virginia will retain its timeline until the issue is considered

during the regulations revision process.during the regulations revision process.

6060

Transfer ChildrenTransfer Children§ 300.304(c)(5)§ 300.304(c)(5)

Assessments of children with disabilities who Assessments of children with disabilities who transfer from one LEA to another in the same transfer from one LEA to another in the same school year are coordinated with those school year are coordinated with those children’s prior and new schools, as necessary children’s prior and new schools, as necessary and as expeditiously as possible.and as expeditiously as possible.

Review Existing Evaluation DataReview Existing Evaluation Data§ 300.305(a)(1)(ii)§ 300.305(a)(1)(ii)

A review of existing evaluation data on a child A review of existing evaluation data on a child must include, as appropriate, current must include, as appropriate, current classroom-based, local, or State assessment classroom-based, local, or State assessment data.data.

6161

Evaluating GraduatesEvaluating Graduates§ 300.305(e)(2)§ 300.305(e)(2)

An LEA is not required to evaluate a child An LEA is not required to evaluate a child with a disability who graduates with a regular with a disability who graduates with a regular diploma, or exceeds the age of eligibility.diploma, or exceeds the age of eligibility.

Copy of the Evaluation Report Copy of the Evaluation Report § 300.306(a)(2)§ 300.306(a)(2)

The LEA must provide the parent with a copy The LEA must provide the parent with a copy of the evaluation report and documentation of of the evaluation report and documentation of the determination of eligibility at no cost to the the determination of eligibility at no cost to the parent.parent.

6262

Evaluation LanguageEvaluation Language§ 300.306(b)(1)(ii)§ 300.306(b)(1)(ii)

““Appropriate” was added to “lack of appropriate Appropriate” was added to “lack of appropriate instruction in math” to mirror the phrase “lack instruction in math” to mirror the phrase “lack of appropriate instruction in reading.”of appropriate instruction in reading.”

Terminology Change Terminology Change §§§§ 300.306(a)(1); 300.309(a)(2)(ii)300.306(a)(1); 300.309(a)(2)(ii)

The qualified professionals and parents that The qualified professionals and parents that make the eligibility determination are referred make the eligibility determination are referred to as “group members” v. “team members” to to as “group members” v. “team members” to distinguish them from the IEP team members. distinguish them from the IEP team members. The group members may be the same as the IEP The group members may be the same as the IEP

team.team.

6363

SLD EligibilitySLD Eligibility States may use alternative, research-based States may use alternative, research-based

procedures to identify children with a specific procedures to identify children with a specific learning disability. learning disability. § 300.307(a)(3)§ 300.307(a)(3)

Initially, the group must determine that the child Initially, the group must determine that the child does not demonstrate achievement that is does not demonstrate achievement that is adequate for the child’s age or the attainment of adequate for the child’s age or the attainment of State-approved grade-level standards when State-approved grade-level standards when provided with appropriate learning experiences, provided with appropriate learning experiences, and instruction in identified areas. and instruction in identified areas. § 300.309(a)(1)§ 300.309(a)(1) Reading Fluency skills were added as an area for Reading Fluency skills were added as an area for

consideration. consideration.

6464

SLD Eligibility SLD Eligibility § 300.307(a)&(b)§ 300.307(a)&(b)

LEAs must use the State criteria to determine LEAs must use the State criteria to determine SLD eligibility. State criteria:SLD eligibility. State criteria: Must notMust not require using the Severe Discrepancy require using the Severe Discrepancy

model;model; Must Must permit the use of response to scientific, permit the use of response to scientific,

research-based intervention methodologies. (RTI);research-based intervention methodologies. (RTI); MayMay permit the use of “other alternative research- permit the use of “other alternative research-

based procedures.”based procedures.”

6565

SLD Eligibility SLD Eligibility Specific documentation is required for an SLD Specific documentation is required for an SLD

eligibility determination. eligibility determination. § 300.311(a)(1)-(a)(7).§ 300.311(a)(1)-(a)(7).

A child can be determined eligible for SLD if A child can be determined eligible for SLD if the child:the child: Meets the eligibility criteria; Meets the eligibility criteria; Exhibits a pattern of strengths and weaknesses in Exhibits a pattern of strengths and weaknesses in

performance, achievement or both, relative to age performance, achievement or both, relative to age and State-approved grade-level standards, or and State-approved grade-level standards, or intellectual development; andintellectual development; and

The pattern is relevant to a SLD identification.The pattern is relevant to a SLD identification. § 300.309(a)(2)§ 300.309(a)(2)

6666

SLD EligibilitySLD Eligibility

““Limited English proficiency” has been added Limited English proficiency” has been added to the list of factors that must be ruled out as a to the list of factors that must be ruled out as a primary factor in eligibility determination. primary factor in eligibility determination. § 300.309(a)(3)(vi)§ 300.309(a)(3)(vi)

The eligibility group must determine that the The eligibility group must determine that the source of the student’s underachievement was source of the student’s underachievement was not the student’s lack of appropriate instruction not the student’s lack of appropriate instruction in reading or math. in reading or math. § 300.309(b)§ 300.309(b)

6767

SLD EligibilitySLD Eligibility The parent and the eligibility group may agree in writing The parent and the eligibility group may agree in writing

to extend the timeline for eligibility determination to to extend the timeline for eligibility determination to obtain additional data. obtain additional data. § 300.309(c)§ 300.309(c)

The LEA must obtain parental consent to evaluate a The LEA must obtain parental consent to evaluate a child suspected of having an SLD. child suspected of having an SLD. § 300.309(c)§ 300.309(c)

The LEA must ensure that the child is observed in the The LEA must ensure that the child is observed in the child’s learning environment to document the child’s child’s learning environment to document the child’s academic performance and behavior in the areas of academic performance and behavior in the areas of difficulty. difficulty. § 300.310§ 300.310 The eligibility group should determine the location of the The eligibility group should determine the location of the

evaluation for preschool children or those out of school.evaluation for preschool children or those out of school.

6868

SLD Eligibility ReportSLD Eligibility Report§ 300.311(a)§ 300.311(a)

The report must include:The report must include: Whether the child does not achieve adequately to meet Whether the child does not achieve adequately to meet

State-approved standards and does not make sufficient State-approved standards and does not make sufficient progress to meet the standards.progress to meet the standards.

Documentation regarding the following effects:Documentation regarding the following effects: Visual, hearing or motor disabilityVisual, hearing or motor disability; ; Mental retardationMental retardation; ; Emotional disturbanceEmotional disturbance; ; Cultural factors; Cultural factors; Environmental or economic disadvantage; or Environmental or economic disadvantage; or Limited English proficiency on the child’s achievement Limited English proficiency on the child’s achievement

levellevel..

BoldedBolded language language is new.is new.

6969

SLD Eligibility ReportSLD Eligibility Report§ 300.311(a)§ 300.311(a)

The report must also include the following if the The report must also include the following if the child participated in an RTI process:child participated in an RTI process: The instructional strategies used and the student-The instructional strategies used and the student-

centered data collected; andcentered data collected; and Documentation that the parents were informed of:Documentation that the parents were informed of:

State policies regarding child performance data to be State policies regarding child performance data to be collected and the general education services to be collected and the general education services to be provided; provided;

Strategies to support the child’s rate of learning; and Strategies to support the child’s rate of learning; and A parent’s right to request an evaluation. A parent’s right to request an evaluation.

7070


States may need to establish policies to address States may need to establish policies to address the unique challenges of evaluating homeless the unique challenges of evaluating homeless children. children. p.46637p.46637

States may establish exceptions to the evaluation States may establish exceptions to the evaluation timeline other than those identified in the statute. timeline other than those identified in the statute. p.46637p.46637

A reevaluation cannot be conditioned on the A reevaluation cannot be conditioned on the parent providing a reason for requesting it. parent providing a reason for requesting it. p.46640p.46640

If a parent waives a triennial, an evaluation may If a parent waives a triennial, an evaluation may later be requested. later be requested. p.46641p.46641

7171


LEAs are not required to conduct evaluations LEAs are not required to conduct evaluations solely for the purposes of assisting children in solely for the purposes of assisting children in meeting the entrance or eligibility meeting the entrance or eligibility requirements of a postsecondary setting. requirements of a postsecondary setting. p.46644p.46644

USDOE will direct technical assistance funds USDOE will direct technical assistance funds to implement RTI models, including to implement RTI models, including developing an RTI resource kit. developing an RTI resource kit. p.46654p.46654

INDIVIDUALIZED INDIVIDUALIZED EDUCATION PROGRAMSEDUCATION PROGRAMS

7373

Team MembershipTeam Membership§§ 300.321 (b) & (e); 300.322 (b)(1)§§ 300.321 (b) & (e); 300.322 (b)(1)

Due to confidentiality, the LEA must have Due to confidentiality, the LEA must have parental consent to invite representatives of a parental consent to invite representatives of a participating agency to meet to consider participating agency to meet to consider transition services.transition services.

For children transitioning from Part C to Part For children transitioning from Part C to Part B, the Part C coordinator or other B, the Part C coordinator or other representatives of the Part C system must be representatives of the Part C system must be invited to the initial IEP team meeting. invited to the initial IEP team meeting.

The excusal provisions apply only to the The excusal provisions apply only to the requiredrequired members of the IEP team. members of the IEP team.

7474

Team Membership Team Membership § 300.321(e)§ 300.321(e)

NOTE:NOTE: Informed, written parental Informed, written parental consentconsent is required to is required to

excuse an IEP team member whose area is being excuse an IEP team member whose area is being modified or discussed. modified or discussed. ConsentConsent: The parent must be provided appropriate and : The parent must be provided appropriate and

sufficient information to be fully informed in his or her sufficient information to be fully informed in his or her native language, or other mode of communication, and native language, or other mode of communication, and understands that consent is voluntary and revocable. understands that consent is voluntary and revocable.

If the IEP team member’s area is not being modified or If the IEP team member’s area is not being modified or discussed, the parent and LEA may discussed, the parent and LEA may agreeagree in writing in writing that the member’s attendance is not necessary. The that the member’s attendance is not necessary. The content of the agreement is up to the parties. content of the agreement is up to the parties.

7575

IEP ProvisionsIEP Provisions

The LEA is required to have an IEP in effect The LEA is required to have an IEP in effect for each child with a disability in the LEA’s for each child with a disability in the LEA’s jurisdiction at the beginning of each school jurisdiction at the beginning of each school year. year. § 300.323(a)§ 300.323(a)

DeletedDeleted: : Requirement that the IEP be in effect Requirement that the IEP be in effect before special education services are provided.before special education services are provided.

If IEP changes are made without a meeting, If IEP changes are made without a meeting, the LEA is required to ensure that the team is the LEA is required to ensure that the team is informed of those changes. informed of those changes. § 300.324(a)(4)§ 300.324(a)(4)

7676


IEP teams must consider a student’s IEP teams must consider a student’s “academic achievement” & “functional “academic achievement” & “functional performance.”performance.” Academic achievementAcademic achievement -- Performance in -- Performance in

academic areas such as: reading or language arts, academic areas such as: reading or language arts, math, science, and history. math, science, and history. p. 46662p. 46662

FunctionalFunctional – Skills/activities not considered – Skills/activities not considered academic/related to a child’s academic academic/related to a child’s academic achievement. Often used in the context of routine achievement. Often used in the context of routine activities of every day living. activities of every day living. p. 46661p. 46661

7777


Peer Reviewed ResearchPeer Reviewed Research -- -- Research that is reviewed by Research that is reviewed by qualified & independent reviewers to ensure the quality qualified & independent reviewers to ensure the quality of information meets field standards before publication. of information meets field standards before publication. p. 46664.p. 46664.

LEAs must invite a child with a disability to attend an LEAs must invite a child with a disability to attend an IEP meeting where transition issues will be considered. IEP meeting where transition issues will be considered. However, only the parent can make educational However, only the parent can make educational decisions, including if the child should attend the IEP decisions, including if the child should attend the IEP meeting, unless:meeting, unless: The child has reached the age of majority; or The child has reached the age of majority; or The parent’s rights have been terminated or limited. The parent’s rights have been terminated or limited. p. 46671.p. 46671.

7878

Additional GuidanceAdditional Guidance An IEP is not required to include specific An IEP is not required to include specific

instructional methodologies. instructional methodologies. p. 46665p. 46665

The LEA determines the personnel to fill the The LEA determines the personnel to fill the roles of the LEA’s required IEP team roles of the LEA’s required IEP team members. A parent is not entitled to require members. A parent is not entitled to require other LEA member to attend the meeting. other LEA member to attend the meeting. pp. pp. 46674-4667546674-46675

An LEA that An LEA that routinelyroutinely excuses IEP team excuses IEP team members from IEP meetings would not be in members from IEP meetings would not be in compliance with IDEA, and would be subject compliance with IDEA, and would be subject to the State’s monitoring and enforcement to the State’s monitoring and enforcement provisions. provisions. p. 46674.p. 46674.

7979

Additional GuidanceAdditional Guidance The LEA determines who can make agreements with the The LEA determines who can make agreements with the

parents regarding team member excusals. The person parents regarding team member excusals. The person must be authorized to bind the LEA. must be authorized to bind the LEA. pp. 46675-46766.pp. 46675-46766.

There is not a specific timeframe noting how far in There is not a specific timeframe noting how far in advance of an IEP meeting the LEA must notify the parent advance of an IEP meeting the LEA must notify the parent of the LEA’s request to excuse an IEP team member. If of the LEA’s request to excuse an IEP team member. If the parents disagree with the excusal, they can:the parents disagree with the excusal, they can: Agree to continue with the meeting;Agree to continue with the meeting; Require an additional meeting if more information is needed; orRequire an additional meeting if more information is needed; or Require that the meeting be rescheduled. Require that the meeting be rescheduled. p. 46676.p. 46676.

8080


The LEA representative may not be excused The LEA representative may not be excused from an IEP team meeting.from an IEP team meeting.

TransfersTransfers – If a child with an IEP transfers – If a child with an IEP transfers from one state to another state, an evaluation from one state to another state, an evaluation completed by the new LEA is an completed by the new LEA is an initial initial evaluationevaluation.. pp. 46681-46682pp. 46681-46682

The LEA is responsible for the additional costs The LEA is responsible for the additional costs of using alternative means of meeting of using alternative means of meeting participation. participation. p. 46687p. 46687

PROCEDURAL PROCEDURAL SAFEGUARDSSAFEGUARDS

8282

Meeting ParticipationMeeting Participation§ 300.322(e)§ 300.322(e)

The LEA must take whatever action is The LEA must take whatever action is necessary to ensure that the parent necessary to ensure that the parent understands IEP meeting proceedings, understands IEP meeting proceedings, including arranging for an interpreter for including arranging for an interpreter for parents with deafness or whose native parents with deafness or whose native language is other than English. language is other than English. This provision is currently in the Virginia This provision is currently in the Virginia

Regulations.Regulations.

8383

Independent EducationalIndependent Educational Evaluation (IEE)Evaluation (IEE)

§ 300.502(b) & (c)§ 300.502(b) & (c)

A parent is entitled to only one IEE at public expense A parent is entitled to only one IEE at public expense each timeeach time the LEA conducts an evaluation component the LEA conducts an evaluation component with which the parent disagrees. – A parent may with which the parent disagrees. – A parent may disagree with multiple evaluation components within a disagree with multiple evaluation components within a single evaluation period.single evaluation period.

If the parent obtains an IEE at public expense, or If the parent obtains an IEE at public expense, or shares with the school division the results of an shares with the school division the results of an evaluation obtained privately, evaluation obtained privately, The results of the evaluation must be considered by the IEP The results of the evaluation must be considered by the IEP

team; and team; and Both types of evaluations may be submitted as evidence in a Both types of evaluations may be submitted as evidence in a

due process hearing.due process hearing.

8484


Response to Intervention (RTI)Response to Intervention (RTI):: Parents are entitled to an IEE at public Parents are entitled to an IEE at public

expense if they disagree with the LEA’s expense if they disagree with the LEA’s evaluation, even if it includes a review of the evaluation, even if it includes a review of the results of a child’s RTI process. However, results of a child’s RTI process. However, mere disagreement with the LEA’s decision mere disagreement with the LEA’s decision to use data from a child’s RTI as part of the to use data from a child’s RTI as part of the evaluation process does not create an evaluation process does not create an entitlement to an IEE at public expense. entitlement to an IEE at public expense. p. p. 46689 46689

8585


Except for the criteria contained in the Except for the criteria contained in the regulations, the LEA may not impose regulations, the LEA may not impose conditions or timelines related to obtaining an conditions or timelines related to obtaining an IEE at public expense. IEE at public expense. p. 46689p. 46689

If a hearing officer orders an IEE, parental If a hearing officer orders an IEE, parental consent is required for an LEA to release consent is required for an LEA to release educational records to the independent educational records to the independent evaluator. If the parent refuses consent, a evaluator. If the parent refuses consent, a hearing officer could decide to dismiss the hearing officer could decide to dismiss the complaint. complaint. p.46690p.46690

8686

Prior Notice (PWN)Prior Notice (PWN)§ 300.503§ 300.503

Some Regulatory Language Some Regulatory Language DELETEDDELETED. . However, However, Parental consent cannot be obtained without the Parental consent cannot be obtained without the

requisite prior written notice.requisite prior written notice. The LEA still has the option of providing the The LEA still has the option of providing the

parent with prior written notice at the same time parent with prior written notice at the same time parental consent is sought. parental consent is sought. p. 46691. p. 46691.

An LEA may use the IEP as part of the PWN An LEA may use the IEP as part of the PWN if the document includes the all of the required if the document includes the all of the required elements. elements. p. 46691p. 46691

8787

Procedural Safeguards Procedural Safeguards § 300.504(a)§ 300.504(a)

The Procedural Safeguards Notice must be The Procedural Safeguards Notice must be provided one time per year, provided one time per year, ANDAND upon:upon: Initial ReferralInitial Referral Evaluation RequestEvaluation Request Parental RequestParental Request Use of Discipline Use of Discipline

Procedures for long-Procedures for long-

term removalterm removal

11stst State Complaint or State Complaint or

due process due process request request

in a school yearin a school year

NOTENOTE:: It is not It is not sufficient to just refer sufficient to just refer the parent to the LEA’s the parent to the LEA’s website.website.

8888

Procedural SafeguardsProcedural Safeguards§ 300.504(c)§ 300.504(c)

The notice must inform parents of the The notice must inform parents of the opportunity to present and resolve complaints opportunity to present and resolve complaints through the due process system through the due process system andand the State the State complaint system. complaint system. Note: Parents may dually file their dispute in both Note: Parents may dually file their dispute in both

systems. However, any part of the State complaint systems. However, any part of the State complaint that is being addressed in a due process hearing that is being addressed in a due process hearing must be held in abeyance pending the completion must be held in abeyance pending the completion of the due process hearing. of the due process hearing.

DISPUTE RESOLUTIONDISPUTE RESOLUTION

STATE COMPLAINT STATE COMPLAINT PROCEDURESPROCEDURES

9191

Resolution OptionResolution Option§ 300.152(a)(3)§ 300.152(a)(3)

The complaint resolution procedures must The complaint resolution procedures must provide the LEA with an opportunity:provide the LEA with an opportunity: To propose, at the LEA’s discretion, a resolution To propose, at the LEA’s discretion, a resolution

of the complaint; and, of the complaint; and, To respond to the complaint, including an To respond to the complaint, including an

opportunity for the parent & LEA to voluntarily opportunity for the parent & LEA to voluntarily engage in mediation. engage in mediation.

Virginia’s complaint resolution procedures Virginia’s complaint resolution procedures have historically included the option for early have historically included the option for early resolution, including the use of mediation, to resolution, including the use of mediation, to resolve complaint issues. resolve complaint issues.

9292

TimelineTimeline§ 300.152(b)(1)(ii)§ 300.152(b)(1)(ii)

The 60 day timeline for the SEA to issue The 60 day timeline for the SEA to issue findings in a complaint may be extended if the findings in a complaint may be extended if the complainant and the LEA complainant and the LEA agreeagree to mediate or to mediate or use other alternative means of dispute use other alternative means of dispute resolution, if available in the State.resolution, if available in the State.

The timeline extension ends if:The timeline extension ends if: Either party withdraws from mediation; or Either party withdraws from mediation; or Either party withdraws the agreement to extend the Either party withdraws the agreement to extend the

time limit. time limit. p. 46604.p. 46604.

9393

Issues in Due ProcessIssues in Due Process§ 300.152(c)§ 300.152(c)

The following new federal provisions are in The following new federal provisions are in the current Virginia Regulations:the current Virginia Regulations: If a complaint (in whole or part) is also the subject If a complaint (in whole or part) is also the subject

of a due process hearing, the State must hold that of a due process hearing, the State must hold that part of the complaint in abeyance pending the part of the complaint in abeyance pending the conclusion of the due process hearing. conclusion of the due process hearing.

If a complaint issue is not part of the due process, If a complaint issue is not part of the due process, it must be resolved via the complaints procedures. it must be resolved via the complaints procedures.

SEAs must resolve complaints alleging an LEA’s SEAs must resolve complaints alleging an LEA’s failure to implement a due process hearing failure to implement a due process hearing decision. decision.

9494

Elements of a Complaint Elements of a Complaint § 300.153(b)§ 300.153(b)

Required elements of a complaint to now includeRequired elements of a complaint to now include:: The complainant’s signature and contact information,The complainant’s signature and contact information, If alleging violations regarding a specific child:If alleging violations regarding a specific child:

Child’s name and address;Child’s name and address; The name of the child’s school;The name of the child’s school; In the case of a homeless child or youth, available contact In the case of a homeless child or youth, available contact

information for the child, and the name of the school the information for the child, and the name of the school the child is attending;child is attending;

A description of the nature of the problem, including the A description of the nature of the problem, including the related facts; andrelated facts; and

A proposed resolution to the problem to the extent known A proposed resolution to the problem to the extent known and available to the party when the complaint is filed.and available to the party when the complaint is filed.

9595

Elements of a ComplaintElements of a Complaint§ 300.153(b)§ 300.153(b)

The new complaint elements are in addition to the The new complaint elements are in addition to the current elements:current elements:

A statement that a LEA has violated a requirement of A statement that a LEA has violated a requirement of Part B of the IDEA or of the federal regulations; andPart B of the IDEA or of the federal regulations; and

The facts on which the statement is based.The facts on which the statement is based.

In Virginia.In Virginia. If VDOE determines the complaint to be If VDOE determines the complaint to be insufficient, its staff will return the complaint to the insufficient, its staff will return the complaint to the complainant with direction for resubmission complainant with direction for resubmission to VDOE.to VDOE.

9696

Other ProvisionsOther Provisions The complainant must forward a copy of the complaint to The complainant must forward a copy of the complaint to

the LEA serving the child simultaneous with filing the the LEA serving the child simultaneous with filing the complaint with the SEA. complaint with the SEA. § 300.153(d)§ 300.153(d) In this instance, VDOE staff will return the complaint to the In this instance, VDOE staff will return the complaint to the

complainant with direction for resubmission. complainant with direction for resubmission.

A complaint must be filed not more than within one year A complaint must be filed not more than within one year from the date the alleged violation occurred. from the date the alleged violation occurred. § 300.153(c)§ 300.153(c) The current exception clause was deleted: “..unless a longer The current exception clause was deleted: “..unless a longer

period is reasonable because the violation is continuing, or the period is reasonable because the violation is continuing, or the complainant is requesting compensatory services for a violation complainant is requesting compensatory services for a violation that occurred not more than 3 years prior to the date the that occurred not more than 3 years prior to the date the complaint is received” by the SEA.complaint is received” by the SEA.

9797

Enforcement of Mediation &Enforcement of Mediation &Settlement AgreementsSettlement Agreements

§ 300.537§ 300.537

The State The State maymay have a mechanism or procedures to have a mechanism or procedures to permit parties to mediation or due process resolution permit parties to mediation or due process resolution agreements to seek enforcement of those agreements agreements to seek enforcement of those agreements from the State, if those procedures are:from the State, if those procedures are: Not mandatory; andNot mandatory; and Are used to deny or delay a parent’s right to enforcement Are used to deny or delay a parent’s right to enforcement

through state or federal court.through state or federal court.

Virginia will address this new flexibility via its Virginia will address this new flexibility via its regulations revision process. In the meantime, in regulations revision process. In the meantime, in Virginia, such matters will continue to be referred to Virginia, such matters will continue to be referred to the court for resolution. the court for resolution.

MEDIATIONMEDIATION

9999

MediationMediation§ 300.506§ 300.506

NOTENOTE:: The provision in § 300.506 (b)(6) that parties to The provision in § 300.506 (b)(6) that parties to mediation may be required to sign a confidentiality pledge mediation may be required to sign a confidentiality pledge prior to mediation beginning was deleted. prior to mediation beginning was deleted. VDOE’s mediators include this signed pledge at the beginning of VDOE’s mediators include this signed pledge at the beginning of

the mediation session. the mediation session. USDOEUSDOE -- Mediation discussions are intended to be -- Mediation discussions are intended to be

confidential and not be used as evidence in any subsequent confidential and not be used as evidence in any subsequent DP hearing/civil proceeding. Therefore, removing § DP hearing/civil proceeding. Therefore, removing § 300.506 (b)(6) does not prevent States from allowing 300.506 (b)(6) does not prevent States from allowing parties to sign a confidentiality pledge. The pledge would parties to sign a confidentiality pledge. The pledge would not be an issue disputed/resolved. P. 46696not be an issue disputed/resolved. P. 46696 VDOE will continue to allow parties to sign a confidentiality VDOE will continue to allow parties to sign a confidentiality

pledge at the beginning of the mediation session. pledge at the beginning of the mediation session.

100100

MediationMediation

The parties may agree to have the The parties may agree to have the mediator facilitate an IEP meeting and/or mediator facilitate an IEP meeting and/or to incorporate the terms of the mediation to incorporate the terms of the mediation agreement into the child’s IEP. agreement into the child’s IEP. p. 46695p. 46695

VDOE’s mediation system does not include VDOE’s mediation system does not include this additional role for mediators, but will this additional role for mediators, but will examine this issue during the revision of the examine this issue during the revision of the Virginia Regulations.Virginia Regulations.

DUE PROCESSDUE PROCESS

102102

Due ProcessDue Process

Only parents & LEAs can file requests Only parents & LEAs can file requests for due process hearings. for due process hearings. § 300.507(a)§ 300.507(a)

The party requesting due process is not The party requesting due process is not required to use the model due process required to use the model due process form, but all required content elements form, but all required content elements must be included. must be included. § 300.509(b)§ 300.509(b)

The same elements must now be included in The same elements must now be included in the state’s model complaints form.the state’s model complaints form.

103103

Resolution PeriodResolution Period§ 300.510§ 300.510

The LEA is required to The LEA is required to conveneconvene a resolution meeting a resolution meeting when a parent files a due process hearing request. The when a parent files a due process hearing request. The LEA is not required to have a resolution meeting if the LEA is not required to have a resolution meeting if the LEA initiates the due process. LEA initiates the due process. p. 46700p. 46700 ConveningConvening -- Holding the resolution meeting within 15 days -- Holding the resolution meeting within 15 days

of receiving the parent’s request for due process. of receiving the parent’s request for due process. pp. 46700-pp. 46700-466701466701

At the end of the 30 day resolution period, the LEA At the end of the 30 day resolution period, the LEA may request the hearing officer dismiss the case, if the may request the hearing officer dismiss the case, if the parent fails to participate in the resolution meeting, parent fails to participate in the resolution meeting, despite the LEA’s reasonable efforts.despite the LEA’s reasonable efforts. The LEA must use the same procedures required to document The LEA must use the same procedures required to document

efforts to obtain parental participation in an IEP meeting.efforts to obtain parental participation in an IEP meeting.

104104

Resolution PeriodResolution Period§ 300.510§ 300.510

If the LEA fails to hold the resolution meeting within If the LEA fails to hold the resolution meeting within 15 days of receiving the parent’s request for a due 15 days of receiving the parent’s request for a due process hearing or fails to participate in the resolution process hearing or fails to participate in the resolution meeting, the parent may request the hearing officer meeting, the parent may request the hearing officer begin the hearing proceedings.begin the hearing proceedings.

The resolution period is The resolution period is 30 days30 days, unless: , unless: Both parties agree in writing to waive the resolution meeting;Both parties agree in writing to waive the resolution meeting; After either mediation or the resolution meeting starts, but After either mediation or the resolution meeting starts, but

before the end of the 30 day period, both parties agree in before the end of the 30 day period, both parties agree in writing that no agreement is possible;writing that no agreement is possible;

Both parties agree in writing to continue mediation at the end Both parties agree in writing to continue mediation at the end of the 30 days, but later a party withdraws from the mediation of the 30 days, but later a party withdraws from the mediation process.process.

105105

Due Process & Part C Due Process & Part C § 300.518(c)§ 300.518(c)

If a due process hearing involves a request for If a due process hearing involves a request for initial services under Part B for a child who is initial services under Part B for a child who is no longer eligible under Part C:no longer eligible under Part C: The LEA is not required to continue providing the The LEA is not required to continue providing the

early intervention services on the child’s IFSP. early intervention services on the child’s IFSP. If a child is eligible under Part B and the parent If a child is eligible under Part B and the parent

consents, the LEA must provide those special consents, the LEA must provide those special education and related services that are not in education and related services that are not in dispute between the parent and the LEA.dispute between the parent and the LEA.

106106

Expedited Due Process Expedited Due Process § 300.532(a) & (c)§ 300.532(a) & (c)

The parent and LEA may request a due The parent and LEA may request a due process hearing regarding disciplinary action process hearing regarding disciplinary action by filing a due process request with all by filing a due process request with all required elements. required elements.

For an expedited due process hearing, a For an expedited due process hearing, a resolution session must be convened within resolution session must be convened within 7 7 daysdays of receiving the due process request. of receiving the due process request.

The requirements regarding sufficiency of The requirements regarding sufficiency of notice do not to apply expedited due process notice do not to apply expedited due process hearings. hearings. p. 46725p. 46725

107107

Additional GuidanceAdditional Guidance The party who alleges insufficiency of the notice of due The party who alleges insufficiency of the notice of due

process is not required to state the basis of the belief. process is not required to state the basis of the belief. Sufficiency will be determined by the hearing officer. Sufficiency will be determined by the hearing officer. p. p. 46698.46698.

Once a due process notice is amended, the timeline for Once a due process notice is amended, the timeline for the resolution period & the hearing process starts over. the resolution period & the hearing process starts over. pp. 46698-46699pp. 46698-46699

OSEP is considering regulating the issue of non-attorney OSEP is considering regulating the issue of non-attorney representation of parties in a due process hearing. representation of parties in a due process hearing. p. 46699p. 46699 NOTENOTE: The Virginia Code, at § 22.1-214 (c), gives lay : The Virginia Code, at § 22.1-214 (c), gives lay

advocates equal standing to an attorney in due process advocates equal standing to an attorney in due process hearings, including the ability to present evidence, cross-hearings, including the ability to present evidence, cross-examine, and compel the attendance of witnesses.examine, and compel the attendance of witnesses.

108108


Other individuals (except attorneys) could attend a Other individuals (except attorneys) could attend a resolution meeting if the LEA or parent determines resolution meeting if the LEA or parent determines that such individuals are relevant members of the IEP that such individuals are relevant members of the IEP team. pp. 46700-46701.team. pp. 46700-46701.

NOTENOTE: The school division’s attorney is excluded : The school division’s attorney is excluded from the resolution meeting, unless the parent brings from the resolution meeting, unless the parent brings an attorney. an attorney. If mediation is used during the 30-day period, instead of If mediation is used during the 30-day period, instead of

the resolution meeting, then the parties may consult the resolution meeting, then the parties may consult VDOE’s State Special Education Mediation System’s VDOE’s State Special Education Mediation System’s procedures on the role of the attorney.procedures on the role of the attorney.

SURROGATE PARENTSSURROGATE PARENTS

110110

Surrogate ParentsSurrogate Parents§ 300.519(f)§ 300.519(f)

If a child is an unaccompanied homeless youth, the If a child is an unaccompanied homeless youth, the LEA may appoint a temporary surrogate for a child LEA may appoint a temporary surrogate for a child who is an employee of any agency involved in the who is an employee of any agency involved in the education or care of the child, despite the requirements education or care of the child, despite the requirements of § 300.519. of § 300.519.

The temporary surrogate may include State, LEA, or The temporary surrogate may include State, LEA, or agency staff, but must meet the other requirements to agency staff, but must meet the other requirements to be a surrogate:be a surrogate: Not have a professional/personal interest that conflicts with Not have a professional/personal interest that conflicts with

the child’s interest; and the child’s interest; and Must have knowledge and skills to ensure adequate Must have knowledge and skills to ensure adequate

representation.representation. A time limit for a temporary surrogate is not necessary. A time limit for a temporary surrogate is not necessary.

It depends on the unique needs of the child. It depends on the unique needs of the child. p. 46712.p. 46712.

DISCIPLINEDISCIPLINE

112112

FBAs & BIPsFBAs & BIPs§ 300.530(b) & (f)§ 300.530(b) & (f)

The new regulations delete the current requirement to The new regulations delete the current requirement to develop an FBA and BIP for removals beginning on develop an FBA and BIP for removals beginning on the 11the 11thth day of removal. day of removal. Congress specifically removed this provision from the Congress specifically removed this provision from the

IDEA 2004 on the assumption that IEP teams use “positive IDEA 2004 on the assumption that IEP teams use “positive behavioral interventions, and other strategies” to address a behavioral interventions, and other strategies” to address a child’s behavioral needs when these behaviors impede the child’s behavioral needs when these behaviors impede the child’s learning or that of others. p. 46721. child’s learning or that of others. p. 46721.

LEAs should be proactive about completing FBA-BIP LEAs should be proactive about completing FBA-BIP process, if necessary. process, if necessary.

An FBA and BIP is required, if the child’s behavior is An FBA and BIP is required, if the child’s behavior is a manifestation of the child’s disability.a manifestation of the child’s disability.

113113

Manifestation Manifestation Determination Review (MDR) Determination Review (MDR)

§ 300.530(c)§ 300.530(c)

During the MDR, if the IEP team determines that the During the MDR, if the IEP team determines that the child’s behavior was a direct result of the LEA’s child’s behavior was a direct result of the LEA’s failure to implement the child’s IEP, the LEA must failure to implement the child’s IEP, the LEA must remedy the deficiencies immediately.remedy the deficiencies immediately.

LEAs should consider “any unique circumstances on LEAs should consider “any unique circumstances on a case-by-case basis” when disciplining a child with a a case-by-case basis” when disciplining a child with a disability. disability. ““Unique circumstancesUnique circumstances”” could include: could include: a child’s discipline history, ability to understand a child’s discipline history, ability to understand consequences, and expression of remorse, as well as consequences, and expression of remorse, as well as supports provided to the child prior to the violation.supports provided to the child prior to the violation. p. 46714-46715p. 46714-46715

114114

In –School SuspensionIn –School Suspension

US DOE continues its long standing policy that an in-US DOE continues its long standing policy that an in-school suspension is not considered a disciplinary school suspension is not considered a disciplinary removal if the child:removal if the child: Is afforded the opportunity to continue to appropriately Is afforded the opportunity to continue to appropriately

participate in the general curriculum;participate in the general curriculum; Continues to receive the services specified on the child’s Continues to receive the services specified on the child’s

IEP; andIEP; and Participates with nondisabled children to the extent a child Participates with nondisabled children to the extent a child

would have in the current placement.would have in the current placement. Portions of a school day that a child is suspended may Portions of a school day that a child is suspended may

be considered as a removal to determine if there is a be considered as a removal to determine if there is a pattern of removals.pattern of removals.

115115

Bus SuspensionBus Suspension VirginiaVirginia -- S-- Students with disabilities are entitled to tudents with disabilities are entitled to

be transported to and from the school/class and be transported to and from the school/class and home at no cost to allow the student to obtain home at no cost to allow the student to obtain educational benefit. If alternative arrangements to educational benefit. If alternative arrangements to receive educational services are not made for a receive educational services are not made for a student with a disability who is suspended from the student with a disability who is suspended from the bus, the bus suspension counts as a disciplinary bus, the bus suspension counts as a disciplinary removal. removal.

LEAs should consider whether bus behavior should LEAs should consider whether bus behavior should be addressed in the student’s IEP. be addressed in the student’s IEP. p. 46715p. 46715

116116


Beginning on the 11Beginning on the 11thth day of removal, a child with a day of removal, a child with a disability who is removed for disciplinary purposes, disability who is removed for disciplinary purposes, must receive educational services to enable the child to must receive educational services to enable the child to continue to participate in the general educational continue to participate in the general educational curriculum, although in another setting, and to progress curriculum, although in another setting, and to progress toward meeting the student’s IEP goals to the extent toward meeting the student’s IEP goals to the extent appropriate to the circumstances. appropriate to the circumstances. ““Participate” – An LEA is not required to replicate every Participate” – An LEA is not required to replicate every

aspect of the services that a child would receive in his/her aspect of the services that a child would receive in his/her normal classroom. The concept of FAPE must be modified normal classroom. The concept of FAPE must be modified because the IEP cannot be implemented exactly as written, because the IEP cannot be implemented exactly as written, including related services. What the child does need in order including related services. What the child does need in order to participate in the general education curriculum.to participate in the general education curriculum. p. 46716p. 46716

117117


Children who are in an IAES placement or Children who are in an IAES placement or who are suspended must be included in all who are suspended must be included in all general State and district wide assessment general State and district wide assessment programs. programs. p. 46718p. 46718

An LEA is not considered to have a “basis of An LEA is not considered to have a “basis of knowledge” just because the child is receiving knowledge” just because the child is receiving early intervening services, unless the child early intervening services, unless the child otherwise meets the criteria triggering a “basis otherwise meets the criteria triggering a “basis of knowledge.” of knowledge.” p. 46727p. 46727

118118

STATE ADVISORY STATE ADVISORY PANELPANEL

119119

State Advisory PanelState Advisory Panel A provision, which allowed the State to use an existing A provision, which allowed the State to use an existing

advisory panel to perform the advisory panel’s functions, advisory panel to perform the advisory panel’s functions, instead of establishing a new advisory panel, was instead of establishing a new advisory panel, was deleted.deleted.

The advisory panel is no longer responsible for advising The advisory panel is no longer responsible for advising on eligible students with disabilities in adult prison.on eligible students with disabilities in adult prison.

Membership:Membership: The parents of children with disabilities represent children The parents of children with disabilities represent children ages ages

birth through 26birth through 26. . The majority of the panel members must be individuals with The majority of the panel members must be individuals with

disabilities or parents of children with disabilities disabilities or parents of children with disabilities ages birth ages birth through 26through 26..

120120

Additional information regarding the Additional information regarding the federal regulations may be found at federal regulations may be found at

USDOE’s website:USDOE’s website:

idea.ed.govidea.ed.gov

121121

Office of Dispute Resolution andOffice of Dispute Resolution and Administrative ServicesAdministrative Services

Telephone (804) 225-2013 Fax (804) 786-8520Telephone (804) 225-2013 Fax (804) 786-8520http://www.doe.virginia.gov/VDOE/dueproc/http://www.doe.virginia.gov/VDOE/dueproc/

Dr. Judith A. Douglas, DirectorDr. Judith A. Douglas, DirectorRon Geiersbach, Coordinator of Due Process ServicesRon Geiersbach, Coordinator of Due Process ServicesJonnell P. Lilly, Coordinator of Complaints ServicesJonnell P. Lilly, Coordinator of Complaints Services

Scottie Alley, Complaints SpecialistScottie Alley, Complaints SpecialistHank Millward, Complaints Specialist Hank Millward, Complaints Specialist Patricia Haymes, Complaints SpecialistPatricia Haymes, Complaints Specialist

Melissa C. P. Smith, Coordinator of Administrative ServicesMelissa C. P. Smith, Coordinator of Administrative ServicesSuzanne Creasey, Administrative Services SpecialistSuzanne Creasey, Administrative Services Specialist

Art Stewart, Coordinator of Mediation ServicesArt Stewart, Coordinator of Mediation ServicesSheila T. Gray, Administrative CoordinatorSheila T. Gray, Administrative Coordinator

Vacant, Support SpecialistVacant, Support Specialist

idea 2004: the federal implementing regulations virginia department of education office of dispute...

Documents

hq special education

new federal regulations

final regulations

notevirginia regulations

qualified teachers

qualified requirements

key provisions of idea

separate housse