Special Education Regulations Revision Process

Office of Dispute Resolution and Administrative Services

Virginia Department of Education

P.O. Box 2120

Richmond, Virginia 23218-2120

To Whom It May Concern:

I am writing to submit my written comments regarding your office’s proposed revisions to the Regulations Governing Special Education Programs for Children with Disabilities in Virginia.

In particular, I strongly object to VDOE’s misuse of 34 CFR § 300.307 as the federal authority to add 8 VAC 20-81-80 (Eligibility) Sections H, I, L M, N, O, P, Q, R, and S to the proposed regulations.  VDOE has misled the public and the Board of Education with its intentional misrepresentation of this federal citation in declaring that this reference gives it the authority to propose criteria for all disabled children. I oppose the inclusion of the arbitrary and subjective sections listed above and recommend that these sections be deleted in their entirety.

The proposed new sections would put in place predetermined and arbitrary requirements for eligibility where none previously existed and where none are required by federal mandates. Additionally, the proposed would make it more difficult for children to be determined eligible for special education services. 

VDOE has arbitrarily expanded the federal requirement for “[s]tates to establish criteria to assist eligibility committees in determining whether a child has a specific learning disability.” The proposed regulation inappropriately adds criteria for selected disability categories (such as autism, developmental delay, deafness, hearing impairment, and others) where no such criteria are set out in the federal or state laws or federal regulations.

The proposed provisions would impose unnecessary barriers for parents and children with disabilities. Such overreaching restrictions can only work to disadvantage children with atypical forms of autism (PDD-NOS, Asperger’s, Rhett’s) or children who are not deaf but use interpreting services (apraxia, dyspraxia, Down’s Syndrome) or children who otherwise would be eligible for special education services. The proposed provisions would improperly give local education agencies the authority to medically diagnosis a child—a role for which they are not qualified. The proposed criteria are arbitrarily conceived to the detriment of children with disabilities and will, if adopted, only create delays in eligibility determinations, lead to battles between school staff and medical experts, and increase litigation.

Moreover, VDOE has not adopted criteria for all disabilities, as it claims in its proposed 8 VAC 20-81-80 (I).  VDOE has carefully chosen not to require the same restrictive criteria for the disability categories of emotional disturbance, multiple disabilities, orthopedic impairment, speech and language impairment, deaf-blindness, or traumatic brain injury.

I agree that there should be criteria for the specific learning disability category, as this is required by the federal regulations, but as I have stated above, I strongly oppose adding novel criteria for selected other disabilities. The above-cited  sections should be deleted in their entirety.

Sincerely,

Jackie Simchick