Friday Tips

Our School & Education Law Team sends out practical tips each week to help school divisions as they navigate the many education regulations and requirements.

Tip 159 ~ April 12, 2024

When a student receiving services under Part C is suspected of having a qualifying disability under the IDEA and will be reaching the age of eligibility for preschool services under Part B, Part C requires notification to the school division where the student resides. Children must be afforded a “smooth and effective” transition from Part C services to the preschool programs under Part B. See 8 VAC 20-81-230(F)(1)-(3). A transition planning conference should occur “not less than 90 days and not more than nine months before the child is eligible for preschool services,” and school divisions are required to participate in these transition planning conferences. See id.

Tip 158 ~ April 5, 2024

Just as an Individualized Education Program or IEP is the written plan for providing special education and related services to a child with a disability under Part B of the IDEA, the principal document for identifying services for an infant or toddler (birth to 2 years old) under Part C of the IDEA is the Individualized Family Service Plan or IFSP. The IFSP is defined as a written plan for providing early intervention services to a child eligible under Part C and the child’s family. See 34 CFR 303.20.

Tip 157 ~ March 29, 2024

When a student’s annual IEP meeting is held early in the school year, it is common for the IEP team to determine that to consider ESY services it is necessary to reconvene at a later date when more information is available. Consider asking your case managers to review the IEPs of all students on their case load immediately after your division returns from spring break. In their review, the case managers should determine whether any IEP meetings must be scheduled to make an ESY determination. Although there is no statutory or regulatory obligation to make an ESY decision by a particular date, it is recommended that an ESY determination be made soon and prior to the end of the school year.

Tip 156 ~ March 22, 2024

When determining whether a student requires Extended School Year (“ESY”) services, the IEP team should consider all relevant data available to the team at that time. That information may include, but is not limited to: IEP Progress Reports; observation and data from school staff and others who have had direct contact with the student before and after breaks in educational programming; data and observations regarding the student’s performance after past breaks from school; and assessment data, including pre-test and post-test data. See Extended School Year Services, VDOE Technical Assistance Resource Document (Dec. 2007).

Tip 155 ~ March 15, 2024

If a student’s IEP team determines that the student requires extended school year (“ESY”) services, the ESY services do not have to be provided in the same amount as the student’s current IEP. IEP teams should review each goal and area of service in the student’s IEP and determine which services, if any, the student requires during breaks from the regular school year so that the gains the student made during the regular school year will not be significantly jeopardized.

Tip 154 ~ March 8, 2024

In Virginia, extended school year services are necessary for the provision of a free appropriate public education to the child, when the benefits a child with a disability gain during the regular school year will be significantly jeopardized if extended school year services are not provided. See 8 VAC 20-81-100(J)(2).

The IEP team’s determination of whether a student’s progress will be significantly jeopardized if services are not provided should be based on information known to the IEP team at the time of the meeting. The IEP team should NOT however, refuse ESY services on the basis that the school division must first obtain data about the student’s functioning and regression during breaks in educational services.

Tip 153 ~ March 1, 2024

In Virginia, parental consent is required before a school division can conduct an initial evaluation of a student and prior to the initial provision of special education services. In the event a parent withholds consent, school divisions must make reasonable efforts to obtain parental consent. Such reasonable efforts may include calling parents to determine whether they have questions about the evaluation process or the initial IEP; sending the parents letters to encourage them to provide the requisite consent; and/or meeting with parents in-person to address their concerns. All reasonable efforts made by the school division to obtain parental consent should be documented, in detail. 8 VAC 20-81-170(E)(8).

Tip 152 ~ February 23, 2024

Parental consent lies at the foundation of the IDEA and is a key aspect of parental participation. A parent need not agree with the propriety or appropriateness of an activity to provide consent; they need only consent to the carrying out of the activity. Parental consent means that the parent has been fully informed of all information relevant to an activity for which consent is sought and agrees, in writing, to the carrying out of the activity. Consent is voluntary and may be revoked at any time. When consent is revoked, it does not operate retroactively, meaning that it does not negate an action that has already occurred. 34 CFR 300.9, 8 VAC 20-81-10.

Tip 151 ~ February 16, 2024

In the commentary to the federal regulations, the U.S. Department of Education stated that both parents of a student with a disability who are divorced, unless a court order or state law indicates otherwise, have educational rights under the IDEA. 71 Fed. Reg. 46,568 (2006); see also 34 CFR 300.30 (b)(1). Both parents should be notified of the scheduling of a meeting convened under the IDEA, meeting notices should be provided to each parent, and both parents should be afforded an opportunity to participate in the meeting. In addition, either parent may give consent to a special education decision. Where a court order may limit, or terminate, a parent’s rights, you may want to seek advice from your school board attorney regarding interpreting the order.

Tip 150 ~ February 9, 2024

Under the IDEA, school divisions are required to take steps to ensure that one or both parents participate in IEP meetings; or are afforded an opportunity to participate in IEP meetings. These steps include: “(a) notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and (b) scheduling the meeting at a mutually agreed on time and place.” 34 CFR 300.322(a)(1)-(2); 8 VAC 20-81-110(E)(1)(a)(b).

Tip 149 ~ February 2, 2024

School divisions must develop procedures that ensure parents and legal guardians have a right to appeal the eligibility decision of the school’s gifted Identification and Placement Committee. Requests filed by the parents or legal guardians to appeal any action of the identification and placement committee shall be filed within ten instructional days of receipt of notification of the action by the division. The process shall include an opportunity to meet with an administrator to discuss the decision (8 VAC 20-40-55).

Tip 148 ~ January 26, 2024

Parents should be involved in all phases of the identification, eligibility, IEP and/or gifted plan development, and implementation process. Both special education and gifted education regulations require parent notification and written consent for evaluation, placement, and implementation of special education and/or gifted education services (Gifted Education Regulations: 8 VAC 20-40-55; Special Education Regulations: 8 VAC 20-81-170).

Tip 147 ~ January 19, 2024

The gifted identification and placement team will determine the service options best suited to meet the student’s gifted education needs. The gifted identification and placement team may collaborate with the IEP team on this determination. The gifted identification and placement team does not determine special education services, however, unless the team is also a group that meets the requirements of an IEP team.

If the gifted identification and placement team and the IEP team are separate, then the IEP team should consider including a gifted education teacher or representative when determining special education services (Gifted Education Regulations: 8 VAC 20-40-20; Special Education Regulations: 8 VAC 20-81-80(F)).

Tip 146 ~ January 12, 2024

Twice-Exceptional Students:

The U.S. Department of Education has repeatedly rejected the argument that academically gifted students with disabilities are ineligible under the IDEA. In Letter to Anonymous, 55 IDELR 172 (OSEP 2010), U.S. DOE stated, “The IDEA is silent regarding ‘twice exceptional’ or ‘gifted’ students. It remains the Department’s position that students who have high cognition, have disabilities and require special education and related services are protected under the IDEA and its implementing regulations.”

Tip 145 ~ December 22, 2023

The Sands Anderson Education Law Team wishes everyone a happy and safe winter break. Enjoy the holidays. Our normal Friday tips will resume next year.

Tip 144 ~ December 15, 2023

In 2023, the U.S. Department of Education’s Office for Civil Rights reminded school divisions to promptly respond to all reports of disability-based harassment. An appropriate response includes:
1) providing parents with a copy of the school division’s policy prohibiting disability-based harassment; and 2) describing the procedures parents can utilize to file a formal complaint and request a school division investigation.

OCR also reminded school divisions that when a student with a disability experiences bullying and/or harassment, the student’s IEP team may need to discuss whether the bullying and/or harassment has impacted the student’s access to a free and appropriate public education (“FAPE”) and whether the student may require additional special education services or supports. See OCR Complaint 03-22-1240 (Sept. 21, 2023).

Tip 143 ~ December 8, 2023

In 2023, a federal court in Virginia reiterated the position that a student’s success in a unilateral private school placement does not invalidate the appropriateness of a proposed IEP calling for the student to be placed and educated in a less restrictive setting. See M.B. v. Fairfax County School Board, 1:22-cv-930 (E.D.Va. Aug. 22, 2023). Under the IDEA, a student’s success in a unilateral private school program “does not alter the IDEA’s substantive requirement that school districts provide an IEP that gives the student an opportunity to make reasonable, not ideal, progress, and that school districts place students in the least restrictive environment possible.” Id. at *13.

Tip 142 ~ December 1, 2023

In 2023, the U.S. Supreme Court issued a decision impacting special education litigation and our understanding of the IDEA’s requirements concerning the exhaustion of administrative remedies (20 U.S.C. § 1415(l)). In Perez v. Sturgis Public Schools, 143 S. Ct. 859 (March 21, 2023), the U.S. Supreme Court held that a plaintiff may bring their claim directly to court if: (1) the claim is filed under a law other than the IDEA (such as Title II of the ADA), and (2) the remedy the plaintiff is seeking is not a remedy available under the IDEA, such as monetary damages.

Tip 141 ~ November 17, 2023

The IDEA requires school divisions to “locate all children with disabilities who are parentally placed in private schools located in the school division.” 20 U.S.C. 1412(a)(10)(A)(ii)(I); 34 C.F.R. 300.131(a); 8 VAC 20-81-150(C)(2)(a). This obligation applies to all students attending private schools that are located in the school division, even if the students attending those schools are not residents of the division, or of Virginia. See Letter to Sarzynski, 66 IDELR 51 (OSEP 2015)

Tip 140 ~ November 3, 2023

Under the IDEA, a school division’s child find obligations may extend to certain non-resident students. For example, a local school division is required to include parentally placed private school children attending a private school located within the school division’s jurisdiction as part of its child find activities. These children must be included even if they are not residents of the school division and even if they do not reside in Virginia or in the United States. 8 VAC 20-81-50(A)(3)(e).

Tip 139 ~ October 27, 2023

When navigating the threat assessment process for a student with a disability, the school threat assessment team should consider including or consulting special education personnel or members of a student’s 504 or IEP team. Understanding the nature of a student’s disability and how a student’s disability may impact a student’s behavior can be important information for the team to review when evaluating whether a student’s conduct poses a serious and credible threat.

Tip 138 ~ October 20, 2023

After completion of a threat assessment for a student with a disability, an IEP team meeting or Section 504 team meeting may be required in order to consider whether changes to the student’s IEP or 504 plan are needed to address the student’s individualized needs, including any behaviors that may be impacting the student’s learning or the learning of others. If the behavior that led to the completion of a threat assessment raises suspicion of a new disability, the school may also need to consider convening a child study or eligibility team meeting to determine whether there is a need for further evaluation.

Tip 137 ~ October 13, 2023

Under Title II of the Americans with Disabilities Act (“ADA”), a public entity may exclude an individual who poses a direct threat to the health or safety of others from the opportunity to participate in or benefit from the entity’s services, programs, or activities. 28 C.F.R. § 35.139(a).

Before an individual may be excluded from a public entity’s programs or activities on this basis, the public entity must make an individualized assessment, based on reasonable judgement that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 28 C.F.R. § 35.139(b).

The U.S. Department of Education’s Office for Civil Rights (“OCR”) has interpreted this provision to apply in the school setting and may be considered in extraordinary cases where an individual’s behavior poses a threat to the safety of the school community. OCR Case Number 5-15-1212 (2015); OCR Case Number 11-15-1102 (2015).

Tip 136 ~ October 6, 2023

In Virginia, each Superintendent must establish, for each school in the division, a threat assessment team that shall include persons with expertise in counseling, instruction, school administration, and law enforcement and, in the case of any school in which a school resource officer is employed, at least one such school resource officer. While each school in the division must have an established threat assessment team, a single threat assessment team can be assigned to support multiple schools. Va. Code § 22.1-79.4(C).

Tip 135 ~ September 29, 2023

Section 504 prohibits school districts from excluding persons with disabilities from participating in, denying them the benefits of, or otherwise subjecting them to discrimination in any program or activity. 34 CFR 104.4(a). This regulation includes extracurricular activities. As such, 504 teams should conduct an individualized inquiry regarding a student’s disability-related needs and offer to provide reasonable accommodations to allow eligible students an equal opportunity to participate in extracurricular activities as well as in the educational program.

Tip 134 ~ September 22, 2023

Website accessibility remains a topic of investigation for both the United States Department of Education, Office for Civil Rights (“OCR”) under Section 504 of the Rehabilitation Act, as well as for the United States Department of Justice under Title II of the Americans with Disabilities Act. OCR has released a 20-part web series that provides information regarding how to make your website accessible to individuals with disabilities.

This web series can be accessed at the following link: 20-Part Web Series on Website Accessibility.

Tip 133 ~ September 15, 2023

The Americans with Disabilities Act (ADA) provides that, among other things, “gender identity disorders not resulting from physical impairments,” and “other sexual behavior disorders” are not disabilit[ies] within the meaning of its terms. 42 U.S.C. § 12211(b). On August 16, 2022, the U.S. Court of Appeals for the 4th Circuit held that “gender dysphoria” does not fall within the ADA’s exclusion for “gender identity disorders not resulting from physical impairments.” Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).

Tip 132 ~ September 8, 2023

In May 2022, the U.S. Department of Education (USDOE) announced its intent to publish newly proposed regulations for Section 504 of the Rehabilitation Act of 1973. Upon publication, members of the public will be permitted to provide input on the proposed regulations, which USDOE will review as it prepares the final regulations. The USDOE initially reported that it planned to publish the proposed regulations for public comment by August of 2023, but these proposed regulations have not yet been published. Stay tuned! See Rulemaking and Regulations by the Office for Civil Rights.

Tip 131 ~ August 25, 2023

Under the Family Educational Rights and Privacy Act (“FERPA”), parents and eligible students are permitted to inspect and review a student’s educational records as well as to make reasonable requests of school personnel for explanations and interpretations of those records. 34 CFR § 99.10(c). In some cases, a reasonable request for an interpretation of a student’s educational record may require the school to share or reference a record that would not traditionally be included within the student’s educational record with the parent or eligible student. For example, if a student’s completed answer sheet to a test is a component of a student’s educational records and a parent or eligible student makes a reasonable request for an explanation or interpretation of that answer sheet, then the school “could show the parent the test question booklet, read the questions to the parent, or provide an interpretation for the responses in some other manner adequate to” respond to the parent’s inquiry, even if the testing booklet is not an educational record of the student. See Letter re: Scott City Sch. Dist., 107 LRP 47713 (FPCO 2007).

Tip 130 ~ August 18, 2023

In order to respond to a request for access to a student’s education records, school staff may need to collect documentation beyond the documents present in the student’s cumulative file. In addition to the cumulative file, a student’s education records may also be located in other areas of the school building or school division. Examples of places where education records may exist beyond the cumulative file include the school’s health clinic; transportation department office; guidance office; and the special education department office.

Tip 129 ~ August 11, 2023

Under the Family Educational Rights and Privacy Act (“FERPA”), parents have the right to access their student’s education records. A right to access a student’s records is not the same as a right to obtain copies of a student’s records. Upon receiving a parental request for access to a student’s records, a school division must inform the parents that the records are available for their inspection and review. If the failure to supply a parent with copies of a student’s records would effectively prevent the parent from having access to the records then the school division may be required to provide the parent with copies of the student’s records (or make other arrangements) to fulfill its obligations under FERPA. For example, a school division may be required to provide a parent with a copy of a student’s records if the parent requesting access to the records lives a significant distance away from the school division and a commute to inspect and review the records in-person is unreasonable.

Tip 128 ~ August 4, 2023

Be aware of 2023 General Assembly changes to § 22.1-291.1:1 with regard to school counselors and the amount of time they may spend on certain activities. Each school counselor must spend at least 80% of his/her time providing direct counseling of individual students or groups of students; and may spend up to 20 percent of his/her staff time during normal school hours on program planning and school support. The underlined terms are defined in the statute and may impact how school counselors will allocate their time in during the 2023-2024 school year.

Tip 127 ~ July 27, 2023

As the 2023-2024 school year approaches, please remind building principals of their obligation to notify the parent of any student who is involved in an alleged bullying incident of the alleged incident within 24 hours of learning of such allegation. Prior to the 2023 General Assembly change, principals were required to notify parents within five school days.

Tip 126 ~ July 21, 2023

As you prepare for the 2023-2024 School Year, please remember that § 22.1-214.4 of the Code of Virginia requires the Virginia Department of Education to “develop a required training module for each individual who participates in an IEP meeting that comprehensively addresses and explains in detail (i) each IEP team member’s respective role in the IEP meeting, (ii) the IEP development process, and (iii) components of effective IEPs.” The statute further requires the training module to be completed by “all IEP participants, with the exception of parents, prior to participating in an IEP meeting and at regular intervals thereafter.” The training module can be found on the Virginia Department of Education website.

Tip 125 ~ July 14, 2023

Effective July 1, 2023, all new threat assessment team members in Virginia’s public schools must complete initial threat assessment training. In addition, all threat assessment team members must now complete refresher training every three years.

Tip 124 ~ July 7, 2023

In observance of Independence Day earlier this week, we will send our next education law tip on Friday, July 14, 2023. We hope you had a great 4th of July and have a wonderful weekend!

Tip 123 ~ June 30, 2023

Beginning July 1, 2023, automated external defibrillators (AEDs) will be required in every elementary and secondary public school in Virginia. Previously, AEDs were optional. By August 1, 2024, the VDOE must compile and make publicly available on its website a list of funding sources for local school divisions.

Tip 122 ~ June 23, 2023

In Virginia, informed parental consent is required before many actions under the IDEA may be implemented, including:

Conducting an initial evaluation or reevaluation;
An initial eligibility determination or any change in categorical identification;
Initial provision of special education and related services;
Any revision to the child’s IEP services; and
Any partial or complete termination of special education and related services, except for graduation with a standard or advance studies diploma.

See 8 VAC 20-81-170(E)(1).

Tip 121 ~ June 16, 2023

For a student with a disability whose eligibility terminates due to graduation with a standard or advanced studies diploma or reaching the age of 22, the school division must provide the student with a summary of the student’s academic achievement and functional performance. 8 VAC 20-81-90(F)(1). The summary of performance must also include recommendations on how to assist the student in meeting the student’s postsecondary goals. Id.; see also Questions and Answers on Secondary Transition, 57 IDELR 231 (OSERS 2011).

Tip 120 ~ June 9, 2023

As part of secondary transition services, in appropriate cases, an IEP must include a statement of any interagency responsibilities or linkages. This statement must be included in an IEP beginning no later than the first IEP to be in effect when the student will turn age 16. In addition, this statement must be updated annually. 8 VAC 20-81-110(G)(10)(b).

Tip 119 ~ June 2, 2023

Beginning July 1, 2023, every public high school in Virginia must publicly identify on its official website the faculty member responsible for special education transition planning and coordination. Va. Code § 22.1-217.3.

Tip 118 ~ May 26, 2023

In observance of Memorial Day, we will send our next education law tip on Friday, June 2, 2023.We hope you have a wonderful holiday weekend!

Tip 117 ~ May 19, 2023

Before a student with a disability enters secondary school, but no later than the first IEP to be in effect when that student reaches age 14 (or younger, if the IEP team decides that it is appropriate), the IEP must include:

Postsecondary goals, which are measurable and based upon age-appropriate transition assessments. The goals should relate to training, education, employment, and if appropriate, independent living skills; and
Transition services, including courses of study, to assist the student in reaching those postsecondary goals. These transition services must be based on the student’s needs and take into account that student’s strengths, preferences, and interests.

8 VAC 20-81-110(G)(10)

Tip 116 ~ May 12, 2023

Extended school year (ESY) services must be included in a student’s IEP if the benefits obtained during the regular school year will be “significantly jeopardized” if services are not provided during the summer. M.M. v. Sch. Dist. of Greenville Cnty., 303 F.3d 523 (4th Cir. 2002). To reach that determination, IEP teams should consider factors such as risk of regression/recoupment; nature and/or severity of the disability; progress; emerging skills and breakthrough opportunities; interfering behaviors; special circumstances or other factors that may significantly jeopardize the benefits the student has obtained. See Extended School Year Services (VDOE 2007).

Tip 115 ~ May 5, 2023

Summertime will be here before you know it. During annual IEP team meetings, IEP teams often defer decisions about extended school year (ESY) services until late in the school year when more information is available for the teams to consider. Case managers should review each IEP on their caseloads to ensure that ESY service decisions have not been overlooked.

Tip 114 ~ April 28, 2023

IEP Development: Practice Tip for IEP Placement Justification and Least Restrictive Environment (“LRE”) Explanation:

Train school staff to draft IEP placement justifications and LRE explanation sections that:

Summarize the student’s needs;
Summarize the proposed program;
Explain how the proposed program meets the student’s needs; and
Provide an explanation of the extent, if any, to which the child will not participate with non-disabled peers in class and non-academic activities.

Additionally, after drafting the placement justification/LRE explanation, compare the narrative statement to the IEP services page and make sure that the two sections of the IEP are consistent.

Tip 113 ~ April 21, 2023

A school division should not establish a specific date after the school year has already begun on which related services for all of its students with disabilities will commence. The U.S. Department of Education has stated that, “[a] policy that mandates that related services for all children with disabilities will begin at a specific time after the beginning of the school year (e.g., the third week of the school year) would not be consistent with the IDEA and its implementing regulations at 34 CFR §§ 300.320-300.324.” Letter to Ackerhalt, 60 IDELR 21 (OSEP 2012). School divisions should establish the schedules of related service providers prior to the start of a school year.

Tip 112 ~ April 14, 2023

A student’s Individualized Education Plan (“IEP”) must include a statement of the special education and related services and supplementary aids and services to be provided to the student. 34 CFR § 300.320(a)(4). The statement regarding the amount of services must be appropriate to the specific service, and clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. See 71 Fed. Reg. 46, 667 (Aug. 14, 2006). The United States Department of Education suggests meeting those requirements by stating the amount of service minutes that will be made available to the student per day. See Letter to Copenhaver, 21 IDELR 1183 (OSEP 1994). In circumstances in which the student’s services are unable to be described using daily allotments, school divisions can use weekly or other specific allotments to describe the student’s services. Using a “range of time” to describe the student’s services would not meet the IDEA’s requirements, as the statement must contain the specific amount of service minutes that will be made available to the student. See id.; Letter to Matthews, 55 IDELR 142 (OSEP 2010); Letter to Copenhaver, 21 IDELR 1183 (OSEP 1994); Letter to Ackron, 17 IDELR 287 (OSEP 1990).

Tip 111 ~ April 7, 2023

IEP Development: Practice Tip for IEP Services

The services listed in the IEP should relate to the IEP goals. Implementation of the special education services and related services described in the IEP should enable the student to make progress toward the student’s annual IEP goals while in the least restrictive environment.

Tip 110 ~ March 31, 2023

In cases where a student’s behavior is impeding his or her learning or the learning of others, the student’s IEP team may determine that the student requires an IEP goal(s) in the area of behavioral skills. When drafting an IEP goal in the area of behavioral skills, encourage school personnel to avoid a goal that focuses solely on reducing the frequency of a student’s non-preferred behavior. Instead, encourage school personnel to consider developing a goal that is designed to promote the utilization of positive, replacement skills and behaviors, that can in turn help to reduce the student’s frequency of non-preferred behaviors.

Tip 109 ~ March 24, 2023

When an IEP team determines that a student with a disability requires an assistive technology device as a component of the student’s IEP, the IEP team should consider whether training may be required as an assistive technology service in order to support the student’s use of the device. Training may be appropriate not only for the student, but also for school personnel, families, or others who may assist the student with utilizing the device in various settings. If the IEP team agrees that training is required as an assistive technology service, the IEP team should carefully document within the IEP when training is required (i.e. a one-time training versus repeated trainings) and who specifically must receive the training.

Tip 108 ~ March 17, 2023

Encourage special education staff members involved with IEP drafting to develop IEP accommodations that use precise and unambiguous language. When reading the IEP, a third party reader (someone not involved in drafting the IEP) should be able to understand from the plain language of the IEP document what the accommodation is, the purpose of the accommodation, and when the accommodation must be provided. Clear and precise accommodations can help support school personnel with IEP implementation and can help parents to better understand the requirements of the IEP document.

Tip 107 ~ March 10, 2023

IEP Development: Practice Tip for Annual Goals

A student’s IEP must include measurable annual goals. It is recommended that IEP teams avoid overly complicated, multifaceted goals that address many different skills in a single goal. Rather, work with your IEP teams to develop discrete goals that are intended to measure one specific skill in each goal. Discrete goals that are intended to measure one specific skill result in better opportunities for data collection and documentation of skill acquisition. Discrete and specific measurable goals allow school staff and parents to more clearly understand the progress that a student is making toward each targeted skill.

Tip 106 ~ March 3, 2023

IEP Development: Annual Goals

A student’s IEP must include: “…measurable annual goals, including academic and functional goals designed to:

Meet the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum, or for preschool children, as appropriate, to participate in appropriate activities; and
Meet each of the child’s other educational needs that result from the child’s disability.”

8 VAC 20-81-110 (G)(2)

Tip 105 ~ February 24, 2023

IEP Development: Present Level of Performance

Practice tips: “Dos” and “Do Nots” when drafting a student’s present level of performance:

DO use objective descriptions of the child, which are based on data when possible.
DO write with precision, and remember to spell check and grammar check.
DO expressly indicate from where the information was derived. (Is the information from a school-based evaluation, private evaluation report, parent input?)
DO include dates of evaluations described in the IEP.
Do NOT use hyperbole, cliches, or overly broad generalizations.
Do NOT use the present level of performance as a running record of IEP team discussions.
Do NOT indicate in the present level of performance what the student’s accommodations, services, or placement will be for the upcoming school year. Those decisions will be made later in the meeting when you get to the appropriate section of the IEP.

Tip 104 ~ February 17, 2023

IEP Development: Present Level of Performance

The Virginia Regulations at 8 VAC 20-81-110(G)(1) state that a student’s present level of performance:

“[S]hall be written in objective measurable terms, to the extent possible. Test scores, if appropriate, shall be self-explanatory or an explanation shall be included;” and
“The present level of performance shall directly relate to the other components of the IEP.”

Tip 103 ~ February 10, 2023

IEP Development: Present Level of Performance

The Virginia Regulations at 8 VAC 20-81-110(G)(1) state that a student’s IEP shall include a statement of:

The child’s present levels of academic achievement;
The child’s present levels of functional performance; and
How the child’s disability affects the child’s involvement and progress in the general curriculum (or, for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities).

Be sure that the present levels of performance in all IEPs include the regulatory requirements.

Tip 102 ~ February 3, 2023

IEP Development: Present Level of Performance

When developing a student’s IEP, it is recommended that the IEP team draft the IEP in the appropriate order. The IEP team should:

Start with the student’s present level of performance;
Draft the student’s annual goals;
Determine what accommodations and services the student requires; and
Conclude by identifying the placement where the student can receive the proposed accommodations and services in the least restrictive environment.

Because the present level of performance should directly relate to the other components of the IEP, the IEP team should begin by identifying a student’s present levels of academic achievement and functional performance to help inform the IEP team’s determination of goals, accommodations, services, and placement.

Tip 101 ~ January 27, 2023

IEP Team Composition: As a reminder, in Virginia, when the IEP team anticipates that postsecondary transition goals and/or services will be discussed at an IEP team meeting:

The student must be invited to participate in the meeting. If the student does not attend, “school staff must take other steps to ensure that the student’s preferences and interests are considered.” 8 VAC 20-81-110(C)(3).
To the extent appropriate and with parental consent (or the consent of an adult student), “the local educational agency shall invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. If an agency invited to send a representative to a meeting does not do so, the local educational agency shall take other steps to obtain the participation of the other agency in the planning of any transition services.” 8 VAC 20-81-110(C)(3)(c).

Tip 100 ~ January 20, 2023

What should happen if a required IEP team member cannot participate “in whole or in part” of an IEP meeting? The procedure will depend on whether the required member’s area of the curriculum or related services is scheduled to be modified or discussed during the meeting:

(1) If the member’s area is not scheduled to be modified or discussed during the IEP meeting:

The parent and LEA must agree, in writing, that the attendance of this member is not necessary.

(2) If the member’s area is scheduled to be modified or discussed during the meeting:

The parent and the local educational agency must consent in writing to the excusal; and
The member must submit, in writing, to the parent and the IEP team input into the development of the IEP prior to the meeting. 8 VAC 20-81-110(D)

Tip 99 ~ January 13, 2023

In Virginia, an IEP team must include the following individuals (8 VAC 20-81-110(C)):

a. The parent(s) of the child;

b. Not less than one regular education teacher of the child (if the child is or may be participating in the regular educational environment);

c. Not less than one special education teacher of the child or, if appropriate, not less than one special education provider of the child. For a child whose only disability is speech-language impairment, the special education provider shall be the speech-language pathologist;

d. A representative of the local educational agency who is:

Qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities;
Knowledgeable about the general education curriculum; and
Knowledgeable about the availability of resources of the local education agency.

e. An individual who can interpret the instructional implications of evaluation results. This individual may be a member of the team serving in another capacity, other than the parent of the child;

f. At the discretion of the parent(s) or local educational agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate; and

g. Whenever appropriate, the child.

Practical Tip: At the outset of every IEP meeting, a school team member should review the IEP meeting notice and be sure that the participants attending the IEP meeting: (a) match the individuals on the meeting notice; and (b) match the regulation’s list of required IEP team members.

Tip 98 ~ January 6, 2023

Prior to an IEP meeting, school staff must take steps to notify parents of the meeting early enough to ensure that the parents will have an opportunity to attend. 8 VAC 20-81-110(E)(1)(a). The notice must indicate the purpose, date, time, and location of the meeting, as well as who will be in attendance. 8 VAC 20-81-110(E)(2)(a)(2). The notice must also inform the parent(s) of the provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child. 8 VAC 20-81-110(E)(2)(a)(3). The determination of knowledge or special expertise of any individual shall be made by the party who invited the individual to be a member of the team. 8 VAC 20-81-110(C)(f).

Tip 97 ~ December 16, 2022

Set a New Year’s resolution to review your school division’s IEE criteria and your school division’s list of IEE evaluators who meet your criteria to ensure this information remains up-to-date. School divisions should not wait until a parent requests an IEE to begin assembling or updating this information.

Tip 96 ~ December 9, 2022

If requested by a parent, a school division must permit the parent(s) to inspect and review education records related to their child. The Virginia Regulations at 8 VAC 20-80-170(G)(1)(a) provide that a school division must comply with a parent’s request to inspect and review their child’s education records, “without unnecessary delay and before any meeting regarding an IEP or any hearing in accordance with 8VAC20-81-160 [discipline procedures] and 8VAC20-81-210 [due process hearings], or resolution session in accordance with 8VAC20-81-210, and in no case more than 45 calendar days after the request has been made.”

Tip 95 ~ November 18, 2022

Students with disabilities should be afforded an equal opportunity for participation in extracurricular athletics in an integrated manner to the maximum extent appropriate to the needs of the student. 34 C.F.R. §§ 104.37(a), (c), 104.34(b). This requirement means that a school division should make reasonable modifications to its policies, practices, or procedures whenever such modifications are necessary to ensure equal opportunity, unless the school division can demonstrate that the requested modification would constitute a fundamental alteration to the nature of the extracurricular athletic activity. See Dear Colleague Letter: Students with Disabilities in Extracurricular Athletics, 60 IDELR 167 (OCR 2013).

The Sands Anderson Education Law Team wishes everyone a happy and safe Thanksgiving. Our normal Friday tips will resume on December 2, 2022.

Tip 94 ~ November 11, 2022

The IDEA’s inclusion requirement extends not only to academics but also includes nonacademic and extracurricular activities. The IDEA’s regulations specify that in providing or arranging for the provision of nonacademic and extracurricular services and activities, school divisions must ensure that each student with a disability participates with nondisabled students in those services and activities to the maximum extent appropriate to the needs of the student. 34 C.F.R. § 300.117. Accordingly, school divisions should provide students with disabilities with supplementary aids and services that are determined appropriate and necessary by an IEP Team so as to afford those students an equal opportunity for participation in nonacademic and extracurricular services and activities.

Tip 93 ~ November 4, 2022

The term inclusion refers to the IDEA’s requirement that students with disabilities receive their education with students who are not disabled, to the maximum extent appropriate. See 34 C.F.R. § 300.114(a)(2). Changing the placement of students with disabilities from the regular educational environment to a more restrictive setting (i.e., special classes or separate schooling) should occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Tip 92 ~ October 28, 2022

The essential function of an IEP is to provide a child with a disability opportunities for appropriate academic and functional advancement and to enable the child to make progress. The U.S. Supreme Court has held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., 137 S. Ct. 988 (2017) (emphasis added). While the Court did not define “in light of the child’s circumstances,” its decision, however, emphasized that the expectations of progress in an IEP must be appropriate in light of a child’s unique circumstances. This standard reflects the IDEA’s focus on the individualized needs of the particular student.

Tip 91 ~ October 21, 2022

The U.S. Supreme Court has held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., 137 S. Ct. 988 (2017) (emphasis added). The “reasonably calculated” standard recognizes that developing an IEP requires a prospective judgment by the IEP Team. Generally, this means that school staff should make IEP decisions based on their own expertise, the progress of the child, the child’s potential for growth, and the views of the child’s parents.

Tip 90 ~ October 14, 2022

The mechanism by which a school division provides a free appropriate public education, or FAPE, is an IEP—a document that describes the child’s unique needs and the school division’s plan for meeting those needs. See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (“The IEP is the centerpiece of the [IDEA’s] education delivery system for disabled children.”) (citation and internal quotation marks omitted).

Tip 89 ~ October 7, 2022

Under the IDEA, a “free appropriate public education,” or FAPE, is a statutory term. It is defined to include special education and related services that:

Are provided at public expense, under public supervision and direction, and without charge;
Meet the standards of the State Educational Agency;
Include an appropriate preschool, elementary school, or secondary school education in the State involved; and
Are provided in conformity with an individualized education program that meets the requirements of 34 C.F.R. §§ 300.320 through 300.324.

34 C.F.R. § 300.17; 8 VAC 20-81-10.

Tip 88 ~ September 30, 2022

The U.S. Centers for Disease Control (CDC) has identified a post-COVID condition called multisystem inflammatory syndrome in children (MIS-C). MIS-C is a condition where different parts of a child’s body become inflamed, such as the brain, heart, lungs, eyes, skin, or gastrointestinal organs. MIS-C can be serious, even deadly, but most children who were diagnosed with this condition have gotten better with medical care. The symptoms include an ongoing fever plus one of the following: stomach pain, diarrhea, bloodshot eyes, dizziness or lightheadedness, skin rash, vomiting, or fatigue. According to the CDC, it is currently unknown how long MIS-C can last. If a student’s MIS-C substantially limits one or more major life activities, the student would have a disability under Section 504.

Tip 87 ~ September 23, 2022

The U.S. Centers for Disease Control (CDC) has identified long COVID as another term for post-COVID conditions. According to the CDC, long COVID can produce a combination of symptoms, including, but not limited to, fatigue, difficulty concentrating, dizziness, difficulty breathing, and joint or muscle pain. If a student’s long COVID substantially limits one or more major life activities, the student would have a disability under Section 504.

Tip 86 ~ September 16, 2022

Under Section 504, school divisions that have 15 or more employees must designate at least one person to coordinate its compliance efforts. 34 C.F.R. § 104.7(a). This person is typically called a Section 504 coordinator.

Tip 85 ~ September 9, 2022

Preschools that receive federal financial assistance are subject to Section 504’s prohibition against discrimination. See 34 C.F.R. § 104.4(a).

Tip 84 ~ September 2, 2022

In the case, S.B. v. Bd. of Educ. of Harford Cnty, 819 F.3d 69 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit commented on school administrators’ responses to allegations of student-on-student disability harassment. The Court noted that not every, “half-hearted investigation or remedial action will suffice to shield a school from liability.”

To help keep students safe and to help defend the school division from liability, train school administrators to properly investigate and respond to allegations of disability harassment.

Tip 83 ~ August 26, 2022

The Virginia Regulations at 8 VAC 20-81-100 (N) state: Disability harassment. Each local educational agency shall have in effect policies that prohibit harassment to children with disabilities.

As the new school year begins, please make sure that school staff are aware of your school division’s policy regarding disability harassment. Train school staff so they know how to recognize disability harassment and how to report allegations of disability harassment.

Tip 82 ~ August 12, 2022

Child Find Screening Tip Number 6 of 6

The prior five Friday tips have focused on compliant child find screening procedures. Note that the Virginia regulations expressly distinguish screening for instructional purposes from special education evaluations. The regulations at 8 VAC 20-81-50 (C)(3), state, “Screening for instructional purposes is not an evaluation. The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.”

Tip 81 ~ August 5, 2022

Child Find Screening Tip Number 5 of 6

Ensure that your school division has compliant child find screening procedures in place. Pursuant to 8 VAC 20-81-50 (C)(2), the screening process requirements include the school division providing “all applicable procedural safeguards.” Applicable safeguards include:

Providing written notice to parents of the scheduled screening and, if the child fails the screening, the results of the screening;
Ensuring confidentiality of each child’s screening process and results; and
Maintaining the results of the screening in the student’s scholastic record.

Tip 80 ~ July 29, 2022

Child Find Screening Tip Number 4 of 6

Ensure that your school division has compliant child find screening procedures in place. Pursuant to 8 VAC 20-81-50 (C)(1)(d) and (f):

Children who fail any of the required screenings may be rescreened if the original results are not considered valid; and
If the screening results suggest that a referral for an evaluation for special education and related services is appropriate, then the child must be referred to the special education administrator or designee, AND the referral must include the screening results.

Tip 79 ~ July 22, 2022

Child Find Screening Tip Number 3 of 6

Ensure that your school division has compliant child find screening procedures in place. Pursuant to 8 VAC 20-81-50 (C)(1)(c), “[e]ach local school division shall have procedures, including timelines, to document the screening of children enrolled in the division, including transfers from out of state . . .”

As part of the screening process, children must be screened, “in the areas of speech, voice, language, and fine and gross motor functions to determine if a referral for an evaluation for special education and related services is indicated.”

Tip 78 ~ July 15, 2022

Child Find Screening Tip Number 2 of 6

Ensure that your school division has compliant child find screening procedures in place. Pursuant to 8 VAC 20-81-50 (C)(1)(a), “[e]ach local school division shall have procedures, including timelines, to document the screening of children enrolled in the division, including transfers from out of state . . .”

As part of the screening process, children must be screened for scoliosis. The Virginia Regulations at 8 VAC 20-690-20 contain the requirements for scoliosis screenings and state that for students in grades 5 through 10, each school board shall:

Provide parents educational information on scoliosis; or
Implement a program of regular screening for scoliosis.

No fee can be charged to parents for this program. School boards are not required to screen students in grades 5 through 10 who have been admitted for the first time to a public school and who have been tested for scoliosis as part of the comprehensive physical examination required by the Code of Virginia. Additionally, parents can opt their children out of scoliosis screening. The regulations also remind school boards that confidentiality laws apply in a school division’s development and implementation of a scoliosis screening program.

Tip 77 ~ July 8, 2022

Child Find Screening Tip Number 1 of 6

As part of the screening process, children must be screened in the areas of hearing and vision. The Virginia Regulations at 8 VAC 20-250-10 contain the requirements for hearing and vision screenings and state that:

Hearing and vision screenings must occur for students in (i) kindergarten, (ii) grade two or three, (iii) grade seven, and (iv) grade 10, and in accordance with the conditions in § 22.1-273 of the Code of Virginia.
Additionally, the hearing and vision screenings of students shall be scheduled within the first 60 administrative working days of the school year.

Tip 76 ~ July 1, 2022

In observance of July 4th, we will send our next education law tip on Friday, July 8, 2022. We hope you have an enjoyable and safe holiday weekend!

Tip 75 ~ June 24, 2022

Consider training all school administrators and appropriate staff on receiving referral requests for a child suspected of having a disability. It is common for initial referrals to be made by general education school staff, or to be made to general education school staff by a parent. The Virginia regulations at 8 VAC 20-81-50 (D)(3)(a) state that:

Children may be referred through a screening process, or by school staff, the parent(s), or other individuals.

The referral may be in written, electronic, or oral form to the principal or designee of the school the child attends, or if initially enrolling in the school division, in the school in the parent’s district.

Please make sure that school staff are trained to understand how referrals may be made and how to process a referral that has been made in written, electronic, or oral form.

Tip 74 ~ June 17, 2022

The summer months are a great time to review your school division’s child find programs. The Virginia regulations at 8 VAC 20-81-50 (A)(1) state that:

Each local school division shall maintain an active and continuing child find program designed to identify, locate and evaluate those children residing in the jurisdiction who are birth to age 21, inclusive, who are in need of special education and related services, including children who:
- Are highly mobile, such as migrant and homeless children;
- Are wards of the state;
- Attend private schools, including children who are home-instructed or home-tutored;
- Are suspected of being children with disabilities under this chapter and in need of special education, even though they are advancing from grade to grade; and
- Are under age 18, who are suspected of having a disability who need special education and related services, and who are incarcerated in a regional or local jail in its jurisdiction for 10 or more days.

One of the components of a school division’s child find program is a public awareness campaign. The regulations at 8 VAC 20-81-50 (B) state that, “[e]ach local school division shall, at least annually, conduct a public awareness campaign to:

Inform the community of a person’s, ages two to 21, inclusive, statutory right to a free appropriate public education and the availability of special education programs and services;
Generate referrals; and
Explain the nature of disabilities, the early warning signs of disabilities, and the need for services to begin early.”

Use the summer months to review your child find programs and ensure that your public awareness campaign is legally compliant.

Tip 73 ~ June 10, 2022

When determining a student’s eligibility for special education services, the eligibility committee must be sure to draw upon information from a variety of sources and carefully consider the information. It is also important that the eligibility committee’s consideration of the various sources is thoroughly and clearly documented. The Virginia Regulations state:

[In] interpreting evaluation data for the purpose of determining if a child is a child with a disability and determining the educational needs of the child, the local educational agency shall:

Draw upon information from a variety of sources, including aptitude and achievement tests, parent input and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and
Ensure that information from all these sources is documented and carefully considered.

8 VAC 20-81-80(D)(1)(a)-(b).

Tip 72 ~ June 3, 2022

When conducting an eligibility meeting under the IDEA, ensure at the outset of the meeting that all required participants are in attendance at the meeting. In Virginia, the eligibility team must include (but is not limited to) the following individuals:

Local educational agency personnel representing the disciplines providing assessments;
The special education administrator or designee;
The parent(s);
A special education teacher;
The child’s general education teacher or if the child does not have a general education teacher, a general education teacher qualified to teach a child of the child’s age; or for a child of less than school age, an individual qualified to teach a child of the child’s age; and
At least one person qualified to conduct individual diagnostic examinations of children, such as school psychologist, speech-language pathologist, or remedial reading teacher. 8 VAC 20-81-80(C)(2).

Tip 71 ~ May 27, 2022

In observance of Memorial Day, we will reserve our next education law team tip for Friday, June 3, 2022. Have a wonderful and safe holiday weekend!

Tip 70 ~ May 20, 2022

If the IEP team determines that a student requires special transportation services as a component of his or her IEP, the IEP team is encouraged to describe in the IEP the specific accommodations, services, or special equipment the student requires as part of his or her special transportation. If your division’s IEP program does not allow you to describe these features within the “special transportation” section of the IEP, consider describing these supports within another component of the IEP or within the prior written notice describing the proposed IEP.

Tip 69 ~ May 13, 2022

An IEP team should take into account a student’s least restrictive environment (LRE) when determining a student’s needs with respect to transportation. According to the U.S. Department of Education, “It is assumed that most children with disabilities will receive the same transportation provided to nondisabled children, consistent with the LRE requirements…unless the IEP team decides otherwise…” (71 Fed. Reg. 46,576 (2006); see also 8 VAC 20-81-100(G)(1)(“Children with disabilities and children without disabilities shall share the same transportation unless a child’s IEP requires specialized transportation.”))

Tip 68 ~ May 6, 2022

In Virginia, a “local school board employee who assists in the transportation of students with autism spectrum disorders on school buses, including individuals employed to operate school buses and school bus aides, shall participate in a training program on autism spectrum disorders established by the Board of Education” (8VAC 20-70-350). This training is satisfied through completion of a two-hour training course/module developed by the VCU Autism Center for Excellence, available at https://vcuautismcenter.org/te/transportation.cfm. Participants in the training will receiving information regarding how to:

Identify the primary and secondary characteristics of autism
Describe strengths of individuals with autism
Discuss proactive and positive strategies for managing behavior
Identify alternatives to avoid restraint and seclusion
Discuss causes of and ways to prevent bullying
Describe why people with autism have difficulty with change
Identify effective strategies and supports for students with autism

See Safety for All: Autism Training for Transportation Providers, Superintendent’s Memo #295-16 (VDOE Dec. 9, 2016).

Such training shall include the characteristics of autism spectrum disorders, strategies for interacting with students with autism spectrum disorders, and collaboration with other employees who assist in the transportation of students on school buses.

Tip 67 ~ April 29, 2022

Although the courts have typically afforded school staff with flexibility and discretion to choose appropriate instructional methodologies and reading programs for students with learning disabilities, “…flexibility in methodology does not mean that a district can ignore evidence that its preferred structured literacy program has not worked and that the unique needs of a student may require school officials to provide alternative, accepted methodologies” (Falmouth School Dep’t v. Doe, 79 IDELR 221 (D. ME 2021)). Therefore, school staff should be prepared to explain to parents why a specific instructional methodology has been chosen and how the chosen methodology addresses the student’s specific educational needs.

Tip 66 ~ April 22, 2022

In the commentary to the federal regulations, the U.S. Department of Education addressed instructional methodologies and stated that, “[t]here is nothing in the Act that requires an IEP to include specific instructional methodologies… [or] that all elements of a program provided to a child be included in an IEP.” 71 Fed. Reg. 46,665 (2006).

While an IEP team may not be required to identify instructional methodologies within a student’s IEP, as a means to build positive relationships with parents, a student’s teachers and other service providers should be encouraged to explain to parents how a student’s specialized instruction will be implemented and how any programming or methodologies chosen to implement this instruction will address a student’s individualized needs.

Tip 65 ~ April 15, 2022

As of July 1, 2017, every individual seeking initial licensure or renewal of a license in Virginia must complete a training on the “indicators of dyslexia,” as well as “the evidence-based interventions and accommodations for dyslexia” (Va. Code Section 22.1-298.1(D)(6)). This training can be completed for free online through the Virginia Department of Education at: https://www.doe.virginia.gov/teaching/licensure/dyslexia-training/index.shtml.

The VDOE has also made available additional guidance documents, including: (1) Virginia’s Guidelines for Educating Students with Specific Learning Disabilities and (2) Dyslexia: Frequently Asked Questions.

Tip 64 ~ April 8, 2022

Under the IDEA, “dyslexia” is a condition for which a student, who meets eligibility criteria, may be found eligible to receive special education and related services as a student with a “specific learning disability.” Under the Virginia special education regulations’ definition of “specific learning disability,” the regulations state:

“Dyslexia is distinguished from other learning disabilities due to its weakness occurring at the phonological level. Dyslexia is a specific learning disability that is neurobiological in origin. It is characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities. These difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction. Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.” 8 VAC 20-81-10 (definition of “specific learning disability”).

Tip 63 ~ April 1, 2022

In July 2020, updates to Va. Code §§ 22.1-277.04 and 277.05 provided that “School boards shall adopt policies and procedures to ensure that suspended students are able to access and complete graded work during and after the suspension.” These updates apply to ALL students, including students with disabilities, who are given a short-term or long-term suspension of any duration. Therefore, students with disabilities, even if only serving a short-term suspension of less than ten school days, must be provided an opportunity to access and complete graded work during and after the suspension.

Tip 62 ~ March 25, 2022

According to the U.S. Department of Education, an in-school suspension would not be considered a day of suspension for IDEA discipline purposes as long as the child is afforded the opportunity to:

Continue to appropriately participate in the general curriculum;
Continue to receive the services specified on the child’s IEP; and
Continue to participate with nondisabled children to the extent they would have in their current placement.

See 71 Fed. Reg. 46715 (2006).

Tip 61 ~ March 18, 2022

School personnel may remove a special education student to an appropriate interim alternative educational setting for not more than 45 school days, without regard to whether the behavior is determined to be a manifestation of the child’s disability if:

The child carries a weapon to or possesses a weapon at school, on school premises, or at a school function; or
The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function; or
The child inflicts serious bodily injury upon another person at school, on school premises, or at a school function.

For purposes of this part, “weapon,” “controlled substance,” and “serious bodily injury” have the meaning given the terms under 8VAC20-81-10.

See 8 VAC 20-81-160(C).

Tip 60 ~ March 11, 2022

During a manifestation determination review meeting, the team must consider:

All relevant information in the child’s file, including the child’s IEP;
Any teacher observations; and
Any relevant information provided by the parent(s).

See 8 VAC 20-81-160(D)(3). “Relevant information in the child’s file” may include, in addition to the IEP, the student’s most recent eligibility paperwork and most recent evaluation reports. See A.W. by Wilson and Wilson v. Fairfax County School Board, 372 F.3d 674 (4^th Cir. 2004).

Tip 59 ~ March 4, 2022

If a decision is made to change the placement of a student with a disability due to the student’s violation of the code of student conduct, then a manifestation determination must be completed, as soon as possible, but not later than 10 school days after the date on which the decision to the take action is made.

A change in placement as a result of a violation of the code of student conduct occurs when either:

A decision has been made to suspend the student from school for more than 10 consecutive school days (long-term suspension); or
The student has received a series of short-term suspensions, which collectively exceed 10 school days within a school year and the removals constitute a pattern.

See 8 VAC 20-81-160 (C) and (D).

Tip 58 ~ February 25, 2022

Under Section 504, students must be reevaluated prior to any significant change in placement. Placement changes triggering a reevaluation frequently occur in the disciplinary context. A long-term disciplinary removal is considered a significant change in placement and triggers the need to reevaluate under Section 504. See 34 CFR 104.35(a); Letter to Williams, 21 IDELR 73 (OSEP 1994). In this context, a manifestation determination review is considered a sufficient reevaluation under Section 504.

Tip 57 ~ February 18, 2022

When a student with a disability has received a series of short-term removals which cumulate to more than 10 school days in a school year, then the school division should conduct a pattern analysis. The short-term removals constitute a pattern when:

The removals cumulate to more than 10 school days in a school year;
The child’s behavior is substantially similar to the child’s behavior in previous incidents that results in a series of removals; and
Because of such additional factors such as:
- the length of each removal;
- the total amount of time the student is removed; and
- the proximity of the removals to one another.

If the school division determines that there is a pattern of removals that constitutes a change in placement, then a manifestation determination is required. If the school division determines that there is NO pattern of removals that constitutes a change in placement, then a manifestation determination is NOT required.

Tip 56 ~ February 11, 2022

When calculating the total number of days a student has been removed, consider that a “school day” means any day, including a partial day, that children are in attendance at school for instructional purposes (8 VAC 20-81-10). Portions of a school day that a student has been suspended may be considered as a removal when determining whether there is a pattern of removals (71 Fed. Reg. 46,715 (2006)).

Tip 55 ~ February 4, 2022

When the behavior of a student with a disability impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions, strategies, and supports to address the student’s behavioral needs by either:

Developing IEP goals and services specific to the student’s behavioral needs; or
Conducting an FBA and determining the need for a BIP to address the student’s behavioral needs.

See 8 VAC 20-81-160(A)(2).

Tip 54 ~ January 28, 2022

To simplify IEP data collection, computer programs with built-in progress monitoring tools can be very useful. However, make sure that staff members are aware of how to accurately enter data into these programs (or verify that the data tracked by the program is accurate) and are aware of the expectation to regularly monitor the student’s progress within the program. In the case S.S. v. Board of Education of Harford County, 498 F. Supp. 3d 761 (D. Md. 2020), a student’s progress reports indicated that she was “making sufficient progress” to meet each of her IEP goals. Unfortunately, the raw data collected by the computer program used by the school showed that the student was actually regressing or making no progress on many of those goals. The court noted that it appeared as though the computer program had “a default setting that labeled all objectives with ‘making sufficient progress to meet goal,’ irrespective of the data…” Although the school staff argued that they believed the student to be making progress, the court ultimately determined that the school division had failed to provide the student with a FAPE, citing the raw data from the school division’s computer program.

Tip 53 ~ January 21, 2022

If a student’s progress reports indicate a lack of progress, then reconvene the student’s IEP team. The USDOE has stated: “If a child is not making progress at the level the IEP Team expected, despite receiving all the services and support identified in the IEP, the IEP Team must meet to review and revise the IEP if necessary, to ensure the child is receiving appropriate interventions, special education and related services and supplementary aids and services, and to ensure the IEP’s goals are individualized and ambitious” (Questions and Answers on Endrew F, v. Douglas Cnty, Sch, Dist. Re-1.71 IDELR 68 (USDOE Dec. 7, 2017). See also 34 CFR § 300.324(b)(1)(ii)(A)).

Tip 52 ~ January 14, 2022

A child’s IEP must state how the child’s progress toward annual goals will be measured and when periodic reports on the child’s progress towards meeting these goals will be provided. In Virginia, progress reports must be given at least as often as progress reports are given to the parents of children without disabilities (34 CFR 300.320(a)(3); 8 VAC 20-81-110 (G)(8)).

Tip 51 ~ January 7, 2022

The Virginia regulations at 8 VAC 20-750-70 (C) state:

Each school division shall review its policies and procedures regarding physical restraint and seclusion at least annually and shall update these policies and procedures as appropriate. In developing, reviewing, and revising its policies, school divisions shall consider the distinctions in emotional and physical development between elementary and secondary students and between students with and without disabilities.

Most school divisions in the Commonwealth adopted policies and procedures regarding physical restraint and seclusion approximately one year ago. Be sure that your school division engages in its annual review of these policies and procedures in a timely manner.

Tip 50-2021 ~ December 17, 2021

Early New Year’s Resolution Tip:

The Virginia Regulations at 8 VAC 20-81-170 (B)(1)(b) state, “The local educational agency shall provide to the parent(s) of a child with a disability, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained and the applicable criteria for independent educational evaluations.”

Do not wait for a parent to request an IEE before drafting your school division’s information about where an IEE may be obtained and the applicable criteria for IEEs. Prepare this information in advance so there is no delay in responding to a request for an IEE. Periodically, update this information about where an IEE may be obtained and your criteria. If, during this current school year, your school division has not yet reviewed and updated your list of potential IEE providers and your IEE criteria, then add this action to the top of your task list for January 2022.

The Sands Anderson Education Law Team wishes everyone a happy and safe winter break. Enjoy the holidays. Our normal Friday tips will resume next year on January 7, 2022.

Tip 49-2021 ~ December 10, 2021

In the case D.H. v. Fairfax County Public Schools, the court held that the IEP proposed by the school division was reasonably calculated to provide FAPE, and therefore, the parents were not entitled to reimbursement for unilaterally placing the student in a private day school. The fact that the parents presented evidence that the student was performing very well in the private school did not mean that the school division should be required to fund the student’s private school placement. The court stated: “D.H.’s excellent progress at [the private school] should be celebrated. However, D.H.’s success at [the private school] does not alter the substantive requirement under the IDEA that school districts provide an IEP that gives the student an opportunity to make reasonable, not ideal, progress. In D.H.’s August 2018 IEP, FCPS clearly provided an opportunity for D.H. to make reasonable progress in light of D.H.’s circumstances” (78 IDELR 39 (EDVA 2021)). To demonstrate that a school division has provided an opportunity for a student to make progress in light of the student’s circumstances, school division staff should be sure that they have proposed an IEP which offers appropriate services, accommodations, and goals to address the student’s individualized needs in the least restrictive environment.

Tip 48-2021 ~ December 3, 2021

A public school division, or Local Educational Agency (LEA), is not required to provide services under Section 504 of the Rehabilitation Act to a parentally placed private school student while the student remains enrolled in his or her private school provided that FAPE is available to the student in the public school (See 34 CFR 104.33(c)(4); D.L. v. Baltimore City Bd. of Sch. Comm’rs, 706 F.3d 256 (4th Cir. 2013)). Notwithstanding, an LEA is still required to identify, locate, and evaluate students located within the LEA’s jurisdiction that are suspected of being a student with a disability. In the event that a private school student is found eligible as a student with a disability under Section 504 while the student is still enrolled in his or her private school, the LEA should develop a Section 504 plan for the student and inform the student’s family that the plan will be implemented should the student enroll and begin attending school in the LEA.

Tip 47-2021 ~ November 26, 2021

The Sands Anderson Education Law Team wishes everyone a happy and safe Thanksgiving. Our normal Friday tips will resume next week on December 3, 2021.

Tip 46-2021 ~ November 19, 2021

Transportation that is required for a private school student to participate in his or her Individual Services Plan (ISP) services must be provided by the LEA, even if services are provided at a location outside of the LEA (34 CFR 300.139; Letter to Ellen Chambers, 69 IDELR 107 (OSEP December 27, 2016)). Nothing in the IDEA requires LEAs to provide transportation from the home of a parentally-placed private school child to the private school (34 CFR 300.139(b)). The cost of any transportation required for private school students is included in the calculation of the proportionate share expenditure (34 C.F.R. 300.139; 8 VAC 20-81-150(C)(9); Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools, Question F-3, 111 LRP 32532 (OSEP 2011)).

Tip 45-2021 ~ November 12, 2021

Children placed by their parents in private schools, including religious schools located within the school division, may receive an Individual Services Plan, even if a student is a non-resident (34 C.F.R. 300.132(a) and (b); Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools, Question J-1, 111 LRP 32532 (OSEP 2011)). Decisions about the type of services offered are made in accordance with the consultation process. The final decisions with respect to the services to be provided to eligible parentally placed private school students are made by the LEA (34 C.F.R. 300.137(b); 8 VAC 20-81-150(C)(6)(b),(c)).

Tip 44-2021 ~ November 5, 2021

A school division’s child find obligations extend to students who are suspected of requiring special education services and are attending a private school located in the school division (8 VAC 20-81-50(A)(3)(e)). These child find obligations extend even when a particular private school student is not a resident of Virginia or the United States (8 VAC 20-81-50(A)(3)(e)). If the administration of a private school is located in a different school division from the school division in which the private school the child attends is located, the school division in which the private school is located and which the child attends is responsible for the child find activities (8 VAC 20-81-50(A)(3)(e)(1)).

Tip 43-2021 ~ October 29, 2021

A prior written notice is required even if: 1) the change is being proposed by the parent; and/or 2) the parent agrees with the proposed change. OSEP has stated that regardless of how a change in the areas of identification, evaluation, educational placement, or FAPE is suggested, “it is the responsibility of the public agency to make a final decision and actually implement any determined change. Therefore, in the circumstances where a public agency is not proposing a change, but rather agreeing with a change that has been proposed by a parent, the public agency would be required to provide prior written notice to the parent.” (Letter to Lieberman, 52 IDELR 18 (OSEP 2008)).

Tip 42-2021 ~ October 22, 2021

The purpose of a prior written notice (PWN) is to help parents understand what is proposed or refused by the IEP team so the parents can provide informed consent (Letter to Boswell, 49 IDELR 196 (OSEP 2007)). In accordance with that goal, state and federal regulations require that the PWN be in writing, written in language understandable to the general public, and provided in the native language of the parent(s) or other mode of communication used by the parent(s), unless it is clearly not feasible to do so (34 CFR 300.503(c) and 8 VAC 20-81-170C).

Tip 41-2021 ~ October 15, 2021

Prior written notice (PWN) is NOT given before a decision is made. If PWN is given before a decision is made, then this action can suggest predetermination. The commentary to the federal regulations state: “Providing prior written notice in advance of meetings could suggest, in some circumstances, that the public agency’s proposal was improperly arrived at before the meeting and without parent input. Therefore, we are not changing Section 300.503 to require the prior written notice to be provided prior to an IEP Team meeting” (71 Fed. Reg. 46,691 (2006)).

Tip 40-2021 ~ October 8, 2021

Prior written notice (PWN) is provided by the school division to parents to advise the parents of proposals or refusals to initiate or change the (1) identification, (2) evaluation, (3) educational placement of the student (including graduation with a standard or advanced studies diploma), or (4) the provision of FAPE for the student. 8 VAC 20-81-170(C).

Tip 39-2021 ~ October 1, 2021

Under Section 504, students with disabilities have the right to attend a school division’s main graduation ceremony, provided they have met the division’s graduation requirements. Letter to Runkel, 25 IDELR 387 (OCR 1996).

Tip 38-2021 ~ September 24, 2021

Prior to making a decision regarding the participation of a student with a disability in an extracurricular athletic activity, school divisions should make sure to utilize the two-step analysis endorsed by the Office for Civil Rights:

Engage in an individualized inquiry to determine whether modification is necessary for the student to be able to participate in the athletic activity.
If the modification is necessary, the school division must allow the modification unless doing so would result in a fundamental alteration of the nature of the extracurricular activity.

Tip 37-2021 ~ September 17, 2021

When discussing extracurricular activities and programs, remember this includes field trips. School divisions are required under Section 504 to provide a student with a disability an equal opportunity to participate in all school programs and activities, including field trips. See South Lyon (MI) Cmty. Schs., 54 IDELR 204 (OCR 2009).

Tip 36-2021 ~ September 10, 2021

Students who have been found eligible under Section 504 and/or the IDEA must be provided an equal opportunity for participation in extracurricular activities. Section 504 regulations require that school divisions provide nonacademic and extracurriculars in “such a manner as is necessary to afford students with a disability an equal opportunity for participation in such services and activities.” 34 CFR 104.37 (a)(1).

Tip 35-2021 ~ September 3, 2021

The sufficiency of a homebound certification should be an administrative decision. An IEP team does not “approve” a homebound certification. If a sufficient homebound certification is submitted to the school division for a student eligible under the IDEA, then the IEP team shall revise the IEP and determine the delivery of homebound services, including the number of hours of services. 8 VAC 20-81-130(C)(3). When drafting an IEP for a student receiving homebound services, remove all doubt regarding the “stay-put” placement by drafting an IEP that expressly indicates that the homebound placement is for a discrete timeframe, and that the homebound IEP is not the “stay-put” placement.

Tip 34-2021 ~ August 27, 2021

Home-based instruction means services that are delivered in the home setting (or other agreed upon setting) in accordance with the child’s Individualized Education Program. 8 VAC 20-80-10. The student’s IEP team makes this placement decision based upon the student’s educational needs and with consideration of the student’s least restrictive environment. Unlike homebound instruction, a medical certification is not required to receive home-based services.

Tip 33-2021 ~ August 20, 2021

Home instruction or home schooling means instruction of a child or children by a parent(s), guardian, or other person having control or charge of such child or children as an alternative to attendance in a public or private school in accordance with the provisions of the Code of Virginia (§ 22.1-254.1 of the Code of Virginia). Students who are home instructed are still subject to the immunization requirements provided in § 32.1-46 in the same manner and to the same extent as if the child is enrolled in and is attending school.

NOTE: “Home tutoring” means instruction by a tutor or teacher with qualifications prescribed by the Virginia Board of Education as an alternative to attendance in a public or private school. Home tutoring must be approved by the division superintendent in accordance with Virginia law. This tutoring is not home instruction or home schooling as defined in § 22.1-254.1.

Tip 32-2021 ~ August 13, 2021

In Virginia, the term “homebound” is usually used to describe “homebound instructional services,” which is academic instruction provided to students who are confined at home or in a health care facility for periods that would prevent normal school attendance (8 VAC 20-81-10). These services must be based on documented medical need and can be provided to both general education and special education students. The certification should include parental permission for the school staff to contact the treating physician or licensed clinical psychologist.

The model homebound instruction medical certification form can be found here.

Tip 31-2021 ~ August 6, 2021

Last week, the U.S. Department of Education’s Office for Civil Rights issued new guidance advising school divisions that students who are experiencing long-term health effects following a COVID-19 diagnosis (“Long COVID”) may be eligible as a student with a disability under the IDEA and/or Section 504 Rehabilitation Act. A copy of this guidance can be found here.

Tip 30-2021 ~ July 30, 2021

An appropriate education under Section 504 can include the provision of related aids and services to a student with a disability that are designed to meet the individual education needs of the student as adequately as the needs of non-disabled peers. 34 CFR 104.33.

While Section 504 does not define the term “related aids and services,” the U.S. Department of Education has issued guidance referring to these services as: “developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic services and transportation.” Frequently Asked Questions about Section 504 and the Education of Children with Disabilities.

Tip 29-2021 ~ July 23, 2021

Section 504 requires that school divisions conduct “periodic” reevaluations of students with disabilities. The regulations indicate that a reevaluation procedure consistent with the IDEA’s reevaluation procedure (calling for reevaluations every 3 years) “is one means of meeting this requirement.” 34 CFR 104.35(d).

Tip 28-2021 ~ July 16, 2021

The U.S. Department of Education’s Office for Civil Rights has advised that a health treatment plan (HTP) could possibly be utilized in place of a Section 504 plan if the school has complied with Section 504’s requirements with respect to evaluation, placement, and procedural safeguards. The procedural safeguards must:

Provide parents with notice of evaluation and placement decisions and notifying parents of their right challenge decisions regarding evaluation and placement through an impartial hearing;
Notify parents of their right to examine relevant records;
Provide an impartial hearing process with an opportunity for participation by the parents and representation by counsel; and
Provide a review procedure for appealing impartial hearing decisions.

See Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools, (Answer to Question 13).

Tip 27-2021 ~ July 9, 2021

Section 504 is silent on the topic of parental consent. The U.S. Department of Education’s Office for Civil Rights has interpreted Section 504 to require that parental consent be obtained prior to initial evaluation and initial placement under Section 504. See Frequently Asked Questions about Section 504 and the Education of Children with Disabilities (Answers to Questions 42-44); Letter to Zirkel (OCR 1995).

Tip 26-2021 ~ July 2, 2021

In observance of the July 4th Holiday, we will reserve our next education law team tip for Friday, July 9, 2021. Have a wonderful and safe holiday weekend!

Tip 25-2021 ~ June 25, 2021

School Staff and Administration Should Recognize Potential Disputes and Respond Proactively (Tip 4 of 4)

Step 4: Train school staff and administration to respond to common indicators of a potential dispute. When school staff or an administrator recognize a potential dispute:

Consider whether compensatory services are required.
- In cases where student progress has not been commensurate with expected progress, particularly in cases where a student’s IEP has not been implemented with fidelity, a discussion regarding compensatory services may be appropriate.
- Compensatory services can ensure that a student receives an appropriate education.
- An offer of compensatory services does not completely shield the school division from future litigation, but if a complaint is filed, then compensatory services can be helpful to show that the school division has attempted to self-correct a procedural violation and/or denial of FAPE.

Tip 24-2021 ~ June 18, 2021

School Staff and Administration Should Recognize Potential Disputes and Respond Proactively (Tip 3 of 4)

Step 3: Train school staff and administration to respond to common indicators of a potential dispute.

If there are concerns regarding progress or the defensibility of the student’s program, reconvene the team to propose updates to the IEP or 504 plan.
When convened, ALL school-based members of the team should be.
- Familiar with the student and his/her program.
- Prepared with examples of progress.
- Attentive when listening to parent concerns and avoid non-verbal communication (i.e. eye rolling, head shaking).
- Affirmatively ask the parent to identify his or her concerns.
Consider conducting updated evaluations:
- If the student has not been recently evaluated in the past three years, strongly consider proposing updated evaluations.
  - Allows the team to make decisions based on the most up-to-date information.
- If the parent has obtained outside evaluations, get a copy of those evaluations and release to speak with the evaluator.

Tip 23-2021 ~ June 11, 2021

School Staff and Administration Should Recognize Potential Disputes and Respond Proactively (Tip 2 of 4)

Step 2: Train school staff and administration to respond to common indicators of a potential dispute. When school staff or an administrator recognize a potential dispute:

An administrator should review the student’s records, speak with relevant staff, and conduct observations regarding possible concerns with:
- Student progress (i.e. IEP goal progress, Grades, Attendance);
- IEP/504 plan implementation;
- Procedural compliance; and
- Defensibility of student’s programming.
Consider whether to hold a parent conference:
- Offer an informal meeting to try to identify the parent’s specific concerns.
- Consider offering to review/explain student progress data as the parent(s) may not understand or know the work being done by staff.
Consider whether to convene an IEP/504 meeting.

Tip 22-2021 ~ June 4, 2021

School Staff and Administration Should Recognize Potential Disputes and Respond Proactively (Tip 1 of 4)

Step 1: Train school staff and administration to recognize possible signs of a special education dispute:

Parent requests a copy of the student’s entire record without identifying the purpose for requesting the records.
Parent requests an Independent Educational Evaluation (“IEE”).
Parent refuses to sign an IEP or IEP addendum.
Parent sends written communications outlining concerns copying outside agencies such as the VDOE and/or USDOE.

See next week’s tip from The School & Education Law Team at Sands Anderson for suggested responses.

Tip 21-2021 ~ May 28, 2021

Having an IEP or 504 team that is prepared, professional, and excited to discuss a student’s educational program will often foster more collaborative and collegial discussions with parents. Prior to your next IEP or 504 team meeting, consider reminding the school-based members of the team to:

be ready to begin the meeting at the designated start time;
come prepared to the meeting with all required paperwork and with relevant student records;
limit as much as possible the presence of personal distractions during the meeting such as emails or text messages; and
be knowledgeable of the student and his/her educational program so school staff are prepared to provide input on decisions regarding the student’s IEP or 504 plan– even if a staff member is not the student’s main classroom teacher.

Tip 20-2021 ~ May 21, 2021

As many students may be participating in instruction through a virtual learning platform, school divisions should be aware of the increased opportunities for cyberbullying. Additionally, school staff should be prepared to promptly investigate allegations of cyberbullying.

“Cyberbullying” refers to:
- Any threats by one student toward another typically through emails or on web sites (e.g., blogs, social networking sites); and/or
- Electronic communication(s) that supports deliberate, hostile, hurtful messages intended to harm others.
School divisions should document the process and findings of the investigation and the action taken by the school division to address the allegations and any findings.
Also remember that allegations of bullying may trigger child-find requirements. For example, parents may inform the school that as a result of being bullied, the student has been diagnosed with depression, anxiety, or another condition. School division staff should be sure to investigate the allegations of cyberbullying and also consider whether a child study team meeting should be convened and/or whether evaluations are needed.

Tip 19-2021 ~ May 14, 2021

If a student is bullied on the basis of disability, then this action may constitute peer-on-peer harassment prohibited by Section 504 of the Rehabilitation Act (“Section 504”) and Title II of the Americans with Disabilities Amendments Act. See Dear Colleague Letter, Office for Civil Rights (OCR) (Oct. 21, 2014).

When a bullying allegation pertains to a student eligible under the IDEA or Section 504 and the bullying is allegedly based on the student’s disability (or the facts would indicate a disability-based allegation), then the school division should initiate an investigation into allegations of discrimination and/or harassment on the basis of a protected class (disability). The school division’s investigation and findings should be documented.
When investigating the bullying allegation, also consider whether an IEP meeting or Section 504 meeting should be convened to consider whether the student’s access to a free appropriate public education has been impacted as well as whether additional or different services, goals, accommodations, or other supports are needed.

Tip 18-2021 ~ May 7, 2021

A series of short-term disciplinary removals may constitute a change in placement, which may require a manifestation determination review (MDR), if the series of short-term removals constitutes a pattern. When determining whether the student’s behavior constitutes a pattern, school divisions should conduct a “pattern analysis.” The student has received a series of short-term removals that constitute a pattern if:

The student has had a series of short-term removals totaling more than 10 school days in a school year;
The student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of removals; and
Additional factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another.

See 8 VAC 20-81-160(C). School divisions should also be sure to document its consideration of the above factors on a case-by-case basis when conducting a pattern analysis.

Tip 17-2021 ~ April 30, 2021

Section 504 requires school divisions to conduct reevaluations of qualified students with disabilities prior to significant changes in placement. According to the U.S. Department of Education’s Office for Civil Rights, the following actions constitute significant changes in placement:

An exclusion from the educational program of more than 10 consecutive school days (e.g., long-term suspensions and expulsions);
A series of short-term exclusions (each 10 school days or fewer) from the educational program, if the exclusions total more than 10 school days and create a pattern of removal;
Transferring a student from one type of program to another (e.g., from a general education class to a special education class); and
Terminating or significantly reducing a related service.

Tip 16-2021 ~ April 23, 2021

Unlike the IDEA, Section 504 does not set a specific deadline for conducting a reevaluation of eligible students. Instead, school divisions are required to reevaluate eligible students on a periodic basis. In addition, school divisions must reevaluate eligible students before subjecting them to a significant change in placement.

Tip 15-2021 ~ April 16, 2021

The amount and type of information required for an appropriate evaluation under Section 504 is determined by a multi-disciplinary committee usually referred to as a 504 team. While Section 504 is not specific about who must attend a 504 meeting, it does describe three categories of individuals who must be on the team that makes evaluation, eligibility, and placement decisions:

Persons knowledgeable about the student;
Persons knowledgeable about the meaning of the evaluation data; and
Persons knowledgeable about the placement options.

Tip 14-2021 ~ April 9, 2021

Section 504 requires school divisions to individually evaluate a student before classifying the student as having a disability or providing the student with special education or related services. Section 504 does not identify specific assessments that must be used as part of the evaluation process, but it does require school divisions to establish evaluation standards and procedures. Those standards and procedures must ensure that tests and other evaluation materials:

Have been validated for the specific purpose for which they are used;
Are administered by trained personnel in conformance with the instructions provided by their producer;
Are tailored to assess specific areas of educational need and are not designed to only provide a single general intelligence quotient; and
Accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors being tested).

Tip 13-2021 ~ April 2, 2021

Determining whether a child qualifies as a student with a disability under Section 504 always begins with the evaluation process. Section 504 requires the use of evaluation procedures. These procedures should ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials. All school divisions are required to establish standards and procedures for initial evaluations and periodic re-evaluations of students who need, or are believed to need, special education or related services because of a disability.

Tip 12-2021 ~ March 26, 2021

A school division’s receipt of an independent educational evaluation (“IEE”) does not mark the end of the IEE process. After receiving the independent evaluation, the next step is to promptly convene an appropriate meeting (usually an eligibility and/or an IEP meeting) to consider the results of the evaluation. While a school division must consider the results of an IEE, school staff have no obligation to adopt the independent evaluator’s recommendations or conclusions. The IEP team must consider the information and determine whether or how the IEE will contribute to the development of the student’s educational program. School staff should also appropriately document in a prior written notice that the team considered the results of the evaluation along with documenting any proposals or refusals that were related to the IEE.

Tip 11-2021 ~ March 19, 2021

The Individuals with Disabilities Education Act is silent on whether an independent evaluator, as part of an independent educational evaluation (“IEE”), may observe a student in the classroom setting. The U.S. Department of Education takes the position that if a school division permitted its own evaluators to observe the student in the classroom setting as part of its evaluation, then the school division must give independent evaluators the same opportunity. With that guidance in mind, it is a good idea for school divisions to develop IEE criteria that allow classroom observations by independent evaluators on a case-by-case basis or for certain types of assessments. Additionally, the school division should consider addressing other aspects of classroom observations in its IEE criteria, such as: the timing, duration, and number of any observation(s); the requirement to protect the privacy of student information; the need to comply with the school board’s policy regarding visitors; and the need to prevent classroom disruptions.

Tip 10-2021 ~ March 12, 2021

Upon request for an independent educational evaluation (“IEE”), school divisions must provide the parent(s) with the following information: (1) the applicable criteria for IEEs; and (2) a list of evaluators who meet the school division’s criteria for completing IEEs. This information should be provided to the parent(s) without unnecessary delay. Accordingly, school divisions should not wait until a parent requests an IEE to begin assembling this information. Also, to ensure that parent(s) are being provided with current information, each school division should periodically review their criteria for IEEs and list of evaluators who meet the criteria, and update this information as necessary.

Tip 9-2021 ~ March 5, 2021

Under the IDEA, an independent educational evaluation (“IEE”) is defined as an evaluation that is conducted by a qualified examiner who is not employed by the school division that is responsible for the education of the child in question. Parents have the right to obtain an IEE at public expense if they disagree with an evaluation obtained by the school division, unless:

The school division demonstrates in a due process hearing that its own evaluation of the child was appropriate; OR
The school division demonstrates in a due process hearing that the evaluation obtained by the parents did not meet the division’s criteria.

Parent(s) are entitled to only one IEE at public expense each time the school division conducts an evaluation with which the parent(s) disagree.

Tip 8-2021 ~ February 26, 2021

Under Virginia’s special education regulations, the reevaluation process, including eligibility determination, must be initiated in sufficient time to complete the process prior to the third anniversary of the date eligibility was last determined. Further, if a reevaluation is conducted for purposes other than the child’s triennial, the reevaluation process, including the eligibility determination, must be completed in 65 business days of receipt of the referral by the school division’s special education administrator or designee. While many school divisions remain backlogged with reevaluations as a result of extended school closures related to COVID-19, the U.S. Department of Education has not agreed to waive these timelines.

If the school division has evaluation dates that were not met due to the COVID-19 school closures, then develop and execute plans for conducting the evaluations that could not be completed. Provide parents the opportunity to participate in the decision-making process for developing these plans to complete evaluations, and explain to parents the virus transmission mitigation efforts employed by the school staff while conducting evaluations.

Tip 7-2021 ~ February 19, 2021

Under Virginia’s special education regulations, initial evaluations must be completed and initial eligibility determinations must be made within 65 business days of the receipt of the referral by the school division’s special education administrator or designee. Extended school closures due to COVID-19 have made it challenging for school divisions to adhere to this timeline. The U.S. Department of Education has not agreed to waive this timeline.

School divisions should develop a plan to support maintaining eligibility timelines. The parent and eligibility group may agree in writing to extend the 65-day timeline to obtain additional data that cannot be obtained within the 65 business days. If a delay happens, document the reason for the delay and the plan to prevent any additional delay

Tip 6-2021 ~ February 12, 2021

Child find is an obligation the IDEA places on school divisions to maintain a program designed to identify, locate, and evaluate students suspected of having a disability and needing special education and related services. While conducting child find during the COVID-19 pandemic might present unique challenges given that many students may lack face-to-face contact with their teachers, the child find obligation is nevertheless ongoing. During virtual instruction, school divisions may want to remind their educators to look for circumstances or behavior that may trigger a school division’s child find obligation, such as requests for accommodations that highlight a disability or medical condition, a student’s inability to access virtual instruction that is unrelated to technological barriers, excessive absenteeism, and declining performance or continued poor performance.

Tip 5-2021 ~ February 5, 2021

When conducting in-person special education evaluations, school divisions should take precautions that will mitigate the risk of COVID transmission. Examples that may be appropriate include:

Sanitizing procedures for the testing room and testing materials
Screening procedures for the students and staff before entry into the building
Use of personal protective equipment including masks, face shields, gloves, and sanitizers
Use of plexiglass-like barriers placed between evaluator and student.

As some parents may have concerns about the possible transmission of the virus during in-person evaluations, be sure to explain to parents the safety measures that the school division has undertaken to mitigate the possible spread of the virus.

Tip 4-2021 ~ January 29, 2021

For those school divisions that permit the use of physical restraint or seclusion, the Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia require two levels of training: initial and advanced. See 8 VAC 20-750-100 (2021). School divisions must provide initial training to all school personnel. School divisions must provide advanced training in the use of physical restraint and seclusion for at least one administrator in every school building and for school personnel assigned to work with any student whose IEP or 504 team determines the student is likely to be physically restrained or secluded. The initial and advanced training must be evidence-based.

Tip 3-2021 ~ January 22, 2021

Under the Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia, IEP teams and 504 teams are now required to meet within 10 school days following the second school day in a single school year on which an incident of physical restraint or seclusion has occurred. See 8 VAC 20-750-80(A) (2021). As part of this meeting, the team should discuss the incident and consider the need for, among other things, the following:

Conducting a functional behavioral assessment;
Developing or revising a behavior intervention plan that addresses the underlying causes or purposes of the behaviors, de-escalation strategies, conflict prevention, and positive behavior interventions;
Developing new or revising existing behavioral goals; and
Conducting additional evaluations or reevaluations.

Tip 2-2021 ~ January 15, 2021

Under the Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia, IEP teams and 504 teams are now required to address the potential use of physical restraint and seclusion. See 8 VAC 20-750-80(A) (2021). Specifically, during the initial development and subsequent review of all IEPs and 504 plans, IEP and 504 teams must consider whether the student displays behaviors that are likely to result in the use of physical restraint or seclusion. In those cases where a team determines that future use of physical restraint or seclusion is likely, that team must consider the need for, among other things, the following:

Conducting a functional behavioral assessment;
Developing or revising a behavior intervention plan that addresses the underlying causes or purposes of the behaviors, de-escalation strategies, conflict prevention, and positive behavior interventions;
Developing new or revising existing behavioral goals; and
Conducting additional evaluations or reevaluations.

Tip 1-2021 ~ January 8, 2021

The Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia became effective on January 1, 2021. Any school division in Virginia that permits the use of physical restraint and seclusion in its schools must develop and implement policies and procedures that satisfy the requirements of these regulations. 8 VAC 20-750-70.

Our attorneys support Virginia public school divisions across the Commonwealth. Whether helping school clients address student discipline matters, analyzing potentially complicated personnel situations, navigating issues related to disability rights, or collaborating on school board governance, we serve school divisions’ complete legal needs.