The fundamental emphasis of IDEA over the years has been to insure meaningful parental involvement in the education of their children with disabilities.  Virginia has been a leader in adopting regulations that promote that involvement and balance the respective interests of educators, parents, and child members of IEP Committees.  The proposed Virginia Special Education Regulations, which are now in this public comment period, in many instances remove past student protections and also remove accountability for educational results.

     I commend to the consideration of the Virginia Board of Education and I support in full each of the comments submitted by the Virginia Coalition for Students with Disabilities on the proposed regulations.  Those comments, which number 52 pages,  can be found at http://www.endependence.org/VCSWD%20Comments%205.08.pdf 

     The comments of the Virginia Office for Protection and Advocacy, posted to this Town Hall site on May 20 are also quite trenchant and indicate a number of concerns with the proposed regulations in "bullet form" in the comments' "Executive Summary".  I commend those comments to the consideration of the Virginia Board of Education, also.

      The following points are a brief list of problems with the proposed regulations that MUST be addressed:

1.  Protect and maintain parents' rights to consent to any change in their children's IEP.  The proposed regs take away the right of parents to consent before their children's IEP services are partially or completely terminated.

2.  Maintain current requirements for Local Special Education Advisory Committees (SEAC).  School system employees should not become voting members of SEACs.

3.  Maintain the requirement that IEP progress reports be provided to students with disabilities at least as often as they are provided to non-disabled students.

4.  Maintain the ability of schools to use the definition of "Developmental Delay" for children who are 2-8 years old.

5.  Rights that are provided to schools should also be provided to parents at due process hearings. Schools and parents should have equal procedural rights to raise all issues at hearings.  The regs as currently drafted only give that right to the LEA to raise issues not raised by a parent in a parental request for due process.  If the LEA files for a due process, the parent should be able to raise all issues. Additionally, and as an important part of maintaining the independence of the hearing officer system,  the regs should retain responsibility for overseeing hearing officers at the Supreme Court of Virginia, not with the VDOE.   VDOE's training of hearing officers would and should continue, but the program oversight should remain with the Court.

6.  Maintain requirements that schools conduct functional behavioral assessments (FBAs) and develop behavior intervention plans (BIPs) for any student  who has been suspended for more than ten days in a row or total in a school year. The draft regs eliminate this requirement in many instances.

7.  Maintain short term objectives in all IEPs.

With some additional work on the part of the drafters of the proposed regulations, Virginia's traditional respect for the rights of students with disabilities and the rights of parents can be maintained.  That balance of educator and parental concerns has meant that students with disabilities have a greater chance of educational progress and future economic self sufficiency and independent living. The requirements of the IDEA 2004 and its implementing regulations are a "floor" below which no state can go, but Virginia should not be satisfied with being on the "floor."

Malcolm B. Higgins,II

Attorney at Law