8 VAC 20-81-10. Definitions.

Autism

Recommendation: Amend the definition of autism as follows:

“Autism" means a developmental spectrum disability significantly affecting verbal and nonverbal communication, and social interaction, generally evident before age three, that adversely affects a child's educational performance.  Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.  Difficulties in abstract thinking, flexible thinking, social awareness and judgment may be present as well as perseverative thinking.  Delays in fine and gross motor skills may also be present.  The order of skill acquisition frequently does not follow normal developmental patterns.  Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance.  A child who manifests the characteristics of autism after age three could be diagnosed as having autism if the criteria in this definition are satisfied.

Justification: The inserted changes would help key the Individualized Education Program (IEP) team in on additional considerations when developing the IEP.  Changes are framed such that they are not to be used as criteria, but characteristics exhibited on the autism spectrum. 

Child study committee

Recommendation:  Retain the child study committee definition in current regulations.

Justification:  Child study committees serve a vital role in the identification, evaluation, determination of eligibility and development and monitoring of special education programs and placements. 

Developmental delay

Recommendation: Use standard age limit of nine years old provided in the Federal Regulations, not the minimum subset. Use early intervening services, as directed by Federal Regulations, 300.226(a) to address disproportionality.

"Developmental delay" means a disability affecting a child ages two by September 30 through five nine inclusive: (34 CFR 300.8(b); 34 CFR 300.306(b))

1. (i) Who is experiencing developmental delays,…

Justification: 

1. 34 CFR 300.8 (b) states: “Children aged three through nine experiencing developmental delays. Child with a disability for children aged three through nine (or any subset of that age range, including ages three through five)”[emphasis added].

2.      Current federal regulations discussion for § 300.226(a) early intervening services states:
Under section 618(d)(2)(B) of the Act, LEAs that are identified as having significant disproportionality based on race and ethnicity… are required to reserve the maximum amount of funds under section 613(f)(1) of the Act to provide early intervening services to children in the LEA, particularly to children in those groups that were significantly over-identified. This requirement is in recognition of the fact that significant disproportionality in special education may be the result of inappropriate regular education responses to academic or behavioral issues.

Therefore, the justification being promoted to eliminate services for student-age children with developmental disabilities is egregious.  Children who demonstrate developmental delay may not meet eligibility requirements for other disability categories at age 5 and should be allowed to utilize the developmental delay label through age 9 to avoid the potential for inaccurate disability category assignments. The federal regulations state that early intervening services are for children in kindergarten through grade 12, with a particular emphasis on children in kindergarten through grade 3; which more than aptly covers disproportionality through age 9.

3. The number of comments opposing reduction of the DD age limit (1059) was second only to the elimination of parental consent (1238).  The opposition to reduce the DD age limit spread over 31 categories of commenters, including special education administrators, LEA personnel, psychologists, speech and language pathologists, occupational therapists, physical therapists, and the SSEAC.  Less than 8% of commenters supported reduction of the DD age limit.

Functional behavioral assessment

Recommendation:  Amend the definition of functional behavioral assessment (FBA) as follows:

 “Functional behavioral assessment” means an(n) process evaluation with parent participation, to determine the underlying cause or functions of a child’s behavior that impede the learning of the child with a disability or the learning of the child’s peers. A functional behavioral assessment may include a review of existing data or new testing data or evaluation as determined by the team.

Justification:  Functional behavioral assessment (FBA) is an evaluation, not an ‘assessment.’ The United States Department of Education, Office of Special Education Programs (OSEP) Letter to Scheinz was written to address the 1997 IDEA, OSEP has issued another Letter on this same issue since IDEA 2004 was passed, consistent with its earlier finding in Letter to Scheinz that parents are entitled to an independent educational evaluation (IEE) FBA.  The new OSEP Letter, Letter to Christiansen, dated February 9, 2007, states:

“If an FBA is used to evaluate an individual child in accordance with 34 CFR §§ 300.304 through 300.311 to assist in determining whether the child is a child with a disability and the nature and extent of special education and related services that the child needs, it is considered an evaluation under Part B and the regulation at 34 CFR § 300.15.  If the FBA is conducted for individual evaluative purposes to develop or modify a behavioral intervention plan for a particular child, under 34 CFR § 300.502, a parent who disagrees with the child’s FBA would have the right to request an IEE at public expense.  These regulatory provisions are consistent with the policy clarification provided in the Scheinz letter.”

Parent participation in the FBA provides additional insight and experience into the evaluation being conducted, and will improve the considerations incorporated into the evaluation.  Parent participation will also reduce the likelihood of a parent disagreeing with the FBA evaluation.

Intellectual disability

Recommendation: Insert the official American Association on Intellectual and Developmental Disabilities (AAIDD) definition for intellectual disability.

“Intellectual disability” means a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before the age of 18.

Justification: An international committee of scholars, educators, psychologists, physicians, researchers, and service providers developed the 2002 definition provided above.  This definition can be found in Mental Retardation: Definition, Classification and Systems of Support (Luckasson et al., 2002), and from the AAIDD website: http://www.aaidd.org/Policies/faq_intellectual_disability.shtml

According to federal law, States are free to use a different term to refer to a child with mental retardation, as long as all children who would be eligible for special education and related services under the federal definition of mental retardation receive a free and appropriate public education (FAPE).  Additionally, per the legislative process from the Virginia General Assembly session in 2008, the term Mental Retardation, will be legislatively changed to “Intellectual Disability.” The Virginia Department of Education (VDOE) should proactively change definitions to adhere to anticipated legislative language.

Interpreting services

Recommendation: Amend the definition of interpreting services as follows:

“Interpreting services” as used with respect to children who are deaf or hard of hearing, means services provided by personnel who meet the qualifications set forth under 8 VAC 20-81-40 and includes translating from one language to another (e.g., sign language to spoken English), oral interpreting and transliteration services, cued language transliteration services, sign language transliteration and interpreting services, and transcription services, such as communication access real-time transcription (CART), C-Print, and TypeWell.”

Justification: There are children who are not deaf or hard of hearing (i.e., oral motor apraxia, Down syndrome) that utilize interpreting services as their main source of communication. To leave out these children would unnecessarily narrow what kinds of interpreting services can be provided.