Public Comment by the Fairfax County Advisory Committee for Students with Disabilities on the Proposed VDOE Regulations

February 13, 2008

The Advisory Committee for Students with Disabilities (ACSD) is the Fairfax County Public Schools SEAC. In our role as spokespersons to the School Board, we have sought input from hundreds of parents and child advocates in our county about the proposed changes to the Virginia Department of Education (VDOE) regulations. We find that parents have a significantly different perspective on these regulations from that of the representatives of Local Educational Agencies (LEAs) who have previously provided comment to the VDOE. We completely reject all arguments that the VDOE should limit its regulations in order to align them with those of the federal government: states have the right and the obligation to tailor their programs to fit the needs of their citizens within the scope of the law. We also reject arguments that the current rights granted to parents impose an undue burden on LEAs; on the contrary, where there is undue burden, it is on the struggling parents who find themselves overpowered by LEAs at almost every turn. In most situations, parents and schools work together in the best interest of children, but when disagreements arise over services, bewildered parents are easily outmaneuvered by the bureaucratic and legal juggernaut that clangs into alignment against them. The rights granted to parents under the current regulations provide some small protection against railroading; these rights should be expanded, not rolled back.

LEA participation on local advisory committees

The ACSD opposes the change in the proposed regulations which allows LEA personnel to act as voting members on local advisory committees.  Our experience in Fairfax County is that employees of FCPS provide invaluable insights and support as we formulate our recommendations to the School Board. However, these recommendations are often contrary to the advice of the staff. At best, it would be impossible for anyone who receives a paycheck from an organization to remain independent of influence; at worst, parents and child advocates would lose a critical means of affecting changes in their school systems.

Gender and ethnic restrictions on membership of local advisory committees

The ACSD opposes the proposed changes that would impose restrictions on the gender and ethnic makeup of its members. Although we seek and value diversity and find it particularly helpful for members to have experience with a variety of disabilities, this proposal is affirmative action at its most ill conceived.  We cannot imagine how a quota system could increase the usefulness of a committee whose pool of volunteers is overwhelmingly female in a county whose citizens come from scores of different cultural backgrounds. The proposed regulations would effectively silence many of our most knowledgeable and vocal parents; we question the actual intention of this change.

Parental Consent to the Termination of Services

The ACSD opposes the elimination of the current requirement for parental consent for the termination of special education eligibility and related services.  Disabilities by their very nature are life-long; removing supports just because they have been successful is unwise.  Parents of children with special needs do not have access to the same resources as school districts; therefore, to ensure a fair process, it is absolutely critical that certain rights be retained by the parents.  The right of consent is a long-held parental right in Virginia.  Requiring parents to go to due process to demonstrate that their children continue to need special education services is placing a tremendous burden on the parties who have the least resources to prove their position.

Parental Consent to Services for Transfer Students

The ACSD opposes the elimination of the current requirement for parental consent prior to providing special education services to transfer students. Such a proposal could permit an LEA to implement an IEP that does not offer comparable services to the student’s previous school district. Prevention of such a scenario far outweighs concerns over the availability of parents to sign consent in a timely manner.

Response to Intervention

The ACSD urges clarification of what is meant by Response to Intervention (RTI). If RTI is to be a tool for determining whether a student has a learning disability, then it is necessary to define or at a minimum provide guidance to LEAs with respect to the tools that should be used, how response will be determined (what scientifically based tools or the requirement that scientifically based tools are used), who is qualified to assess a student's response and what training in necessary in order for an individual to be deemed qualified to assess whether a student has responded to intervention.

Short Term Objectives

The ACSD urges modification of the regulations to add that IEP teams must formally consider including short term objectives for all students. Unless consideration of these objectives is included on the agenda check list, these useful tools will be forgotten, much to the loss of students for whom frequent reevaluation is necessary to determine if their educational program is actually working.

Due Process Hearing System

The ACSD opposes removing the implementation of the due process hearing system from the Supreme Court of Virginia and shifting it exclusively to VDOE.  LEAs have the ear of the VDOE, but individual parents have no influence whatsoever. The proposed removal of the special education due process hearing system from the judiciary to the regulating agency presents a conflict of interest and would improperly create a new, non-independent judicial system.

Furthermore, the ACSD opposes the elimination of the current requirement to develop and submit an implementation plan following the rendering of a due process decision or the withdrawal of a hearing request.  Parents must not have their expensive and rare victories crumble into dust by the failure of the school system to ever implement them.

Discipline Procedures

The ACSD opposes eliminating the requirement that any child with a disability removed for longer than 10 days be provided services that enable the child to progress in the general education curriculum.  Services provided for students during removal lasting longer than 10 days are already woefully inadequate, thus compounding the student’s disciplinary problems with school failure. The proposed regulatory change would eliminate all requirements on local school divisions to attempt to remedy this shortcoming in the provision of special education services.

The ACSD urges clarification to say that returning a student to the original placement means to the original school, not simply to the same level of services.  Currently in Fairfax County Public Schools, principals are given the option of expelling children from their school and forcing them to go to another school even if the Manifestation Determination Review is concluded in the students’ favor. Participating in the decision about where a child attends school is critical to parental involvement and should not be denied where a child’s actions are a manifestation of his or her disability.

Functional Behavioral Assessments

The ACSD opposes permitting the development of a Functional Behavioral Assessment (FBA) after merely reviewing existing data. This definition should be amended to state that the FBA is an evaluation that consists of a systematic collection and analysis of direct and indirect data, and may include a review of existing data. It is the frequent experience of parents that schools conduct FBAs in name only, failing to explore the actual function of a child’s behavior and hastily compiling previous observations into a paper trail to justify disciplinary action.  It is to everyone’s benefit to determine why the child is misbehaving, especially if the behavior is a manifestation of the child’s disability.

Timelines

The ACSD opposes delaying the trigger for the eligibility time line until parental consent is obtained, rather than starting the clock when the initial referral is made. The current timeline is more than adequate in the majority of cases; further delay in the delivery of services will only increase the possibility of school failure and demoralization. Even as it is, the unjustified modification of the federally mandated “days” by the VDOE to read “business days” leads to extraordinary delays when the timeline happens to correspond to school holidays.

Child Study Committees

The ACSD opposes the elimination of Child Study Committees as currently required by the existing regulations. VDOE’s proposal to leave the referral procedures up to LEAs removes the guarantee that parents be participants in the process.  The proposal will also eliminate the protection of timelines. 

Labeling

The ACSD recommends modification of the regulations to use the term emotional disability rather than emotional disturbance. The term emotional disability, though far from humane, at least has the advantage of obscuring its pejorative nature behind a veil of bureaucratic jargon. The term emotionally disturbed, on the other hand, has a real English meaning that inflicts cruel damage on children while failing to summarize the criteria for eligibility that it is intended to encompass. Similarly, the ACSD recommends modification of the regulations to use the term “intellectual disability” rather than “mental retardation.” Children do not want to be called mentally retarded, and expectations are lowered just by the use of the words.

Eligibility Criteria.

The ACSD opposes the definition of eligibility criteria for disabilities that exceed those defined in the federal regulations and take away flexibility from the LEAs. Such overreaching provisions may work to the disadvantage of children who would otherwise qualify for services as a child with a disability.  For example, in defining the criteria for eligibility under autism, the proposed regulations may exclude children with an autism spectrum disorder who do fit the narrow DSM autism diagnostic criteria contained in the provisions.  Federal law includes autism as a covered disability under IDEA; it does not endeavor to define the various educational criteria for the autism disability as a spectrum disorder. 

Definition of Autism
The ACSD recommends that the proposed Virginia regulation defining autism reflect that of federal regulation, which states, "A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in this definition are satisfied."  The proposed regulations substituted the word "diagnosed" for the word "identified;” the former is an improper term to use for educational purposes.  School personnel are no more qualified to diagnose autism than they are to make any other medical diagnosis.

Developmental Delay.

The ACSD opposes limiting the developmental delay category only to the ages of 2 to 5 and supports the IDEA 2004 definition of developmental delay from ages 2 to 9.  The developmental delay label is especially important for young children who benefit from early intervention, but who may not be easily categorized. Rushing to label a child’s disability may have serious long term repercussions for that child’s education and emotional development.

Individualized Education Program and Transition.

The ACSD supports the change in regulation that exceeds the federal regulations and directs that transition services be put into effect when the child turns 14, two years younger than indicated by IDEA 2004. All IEPs should be written with the long term goal in mind; it takes many years to accumulate necessary information to plan the right curriculum and arrange for employment and independent living.

Finally, because the state is ceding to the local school district more power and autonomy by removing numerous provisions previously mandated, the state should require the districts to provide notice and an opportunity for public comment on their own local rules so parents can present their concerns and express their opinions, thereby assuring fair and appropriate local regulations.