Recommendations

Some of the proposed regulations are vague, open to interpretation, or not feasible.  Below we identify regulations that require revision and make recommendations for new language or regulations.

671-30-In a previous draft of these regulations, there was a letter D which allowed the Department to grant exceptions for good reason.  We recommend this regulation be added back in as the private schools in Virginia serve a diverse group of students with special education needs.  Attempting to impose a rigid set of standards that do not grant any flexibility would be detrimental to the ability of private schools to individualize the educational programming to meet the needs of the students they serve.

671-250-Due to the type of disability a student may have, it may be impossible to obtain written consent from the student.  We recommend changing this to verbal assent for students over 14 to participate in fundraising activities.

671-330-B-Requiring either two years of coursework or two years of full-time successful work experience with children may make it challenging for some programs to find qualified staff.  We recommend the minimum qualifications for support staff be consistent with those for child care staff in residential programs as outlined in 12VAC35-46-380 where the minimum qualifications are a baccalaureate degree in human services, or an associates degree and three months of experience working with children, or be a high school graduate (or GED equivalent) and have six months of experience working with children.

671-340-E-We believe this regulation is redundant given that only certified staff are permitted to administer medication as outlined in the proposed 8VAC20-671-710-K-1. We recommend removing 671-340-E.

671-350-H-The language in this standard is vague in that it requests 15 additional hours of annual training without providing any context to which the hours are in addition.  Teachers are required to engage in a variety of professional development activities in order to maintain their license.  Requiring an additional 15 hours of professional development would create time constraints to engage in other necessary activities such as internal and external collaboration, lesson plan development, meeting all paperwork requirements, and curriculum development.  Each of these activities is required to make sure the individual needs of each child are being met. Therefore, we recommend the removal of this specific amount of professional development to ensure adequate time and attention is being paid to other necessary tasks.

671-370- The construction of Section A seems to imply that items 1 through 4 are actually included in Virginia Uniform Statewide Building Code (13VAC5-63) when in fact they are not.  To prevent inevitable confusion, any enumerated items should simply be placed in their own new section labeled ‘B’, and the current B should become section C, the current C should become D and so forth.

671-370-A-2-We appreciate the attempt of this standard to conform to the current regulations regarding school construction in Virginia for self-contained classrooms.  However, our buildings have already been constructed and the only way to conform to having 50 square feet per student would be to reduce the number of students per classroom.  Each of our programs has programmatic features that may not be available in a public school and would therefore decrease the amount of square footage required per occupant.  For example, many programs have support areas where children who are having behavioral difficulties can spend time until they are available for learning.  These areas are not calculated in the classroom square footage but are an available resource for when a student may need additional space.

Meeting the requirement of 50 square feet per occupant would require our programs to either reduce the number of students enrolled or construct additional classrooms.  Constructing additional classrooms would require additional staff.  Both ways to meet the 50 square foot requirement would have a significant fiscal impact on all of our programs.  The fiscal impact may result in programs no longer being able to operate which would close businesses, reduce jobs, and leave our staff unemployed.  The closing of programs as a result of this requirement would narrow the options available for children with disabilities in Virginia.  Narrowing the options may result in a lack of services being available for students with disabilities in Virginia, which could potentially result in either an increase in out of state placements or students with disabilities being underserved.  .  We are not aware of evidence demonstrating students with disabilities will benefit from having this much available space in the classroom.

We recommend the specific space requirement be completely removed from the regulation as existing programs have been established in compliance with zoning and occupancy ordinances.  If it is necessary to leave the space requirement in the regulation, we recommend the term “occupant” be changed to “student” and that it should only apply to new construction for private schools for students with disabilities.  Existing programs should be grandfathered in and the new construction clause should go into effect upon passage of the draft regulations.  We recommend that the grandfather clause should continue to exist should a program change.  Finally, we recommend that the grandfather clause should also apply if a program renovates or adds additional space so that they do not need to retrofit their existing space to meet this regulation.

671-380-C-Our understanding is that the public schools are only required to conduct one tornado drill a year.  Though we recognize the necessity of tornado drills, they can be extremely disruptive to our learning environments which jeopardize students’ ability to learn.  We recommend requiring the same number of tornado drills as the public schools.

671-410-D-We agree this standard is appropriate for students placed in our programs for non-educational reasons because it may be difficult to identify the appropriate person to contact in a school division to request records.  We recommend this standard be changed so that only non-educationally placed students have their records requested from the superintendent. 

For educationally placed children, we recommend adding language that the school will request the records directly from the Local Education Agency representative that made the referral.  The LEA representative will have direct access to the student records making the process more efficient than the records request having to go through channels.

671-420-B-We currently provide an adequate amount of instruction every school day to help our students learn.  However, some of our programs work on models that average 5.5 hours a day by providing 27.5 hours a week,  Being able to have a shorter day each week provides the flexibility necessary to help collaborate and develop lesson plans.  The hours are made up on other school days.  We recommend the language of the standard be changed from 5.5 hours of instruction per day to 27.5 hours per week which will average to 5.5 hours of instruction per day.

671-430-A-We recognize the importance of collaborating with our community.  However, the programs we operate require specialized knowledge about the population we serve and seeking input from citizens and the community who may lack that knowledge may be detrimental.  We certainly welcome feedback from stakeholders in our programs and therefore recommend the language be changed from community to stakeholder.  Further, we would like the language to be changed from evaluating to seeking input.

671-440-A-2-Many of our programs have been in existence for many years and our objectives and goals have allowed us to be successful in working with the children we serve.  However, these goals and objectives may not be written in measurable terms.  We recommend the removal of the measurable terms language from this regulation so that successful programs do not need to go through the process of rewriting their program goals and objectives.

671-460-G-We recognize the importance for students to participate in physical education and health.  However, having a student participate in physical education after they have met the credit requirements towards graduation may not be the most efficient use of their academic time and may detract from their ability to either take additional classes or work on remediation of underdeveloped academic skills.  We recommend the language in this standard be changed so that it is consistent with graduation requirements rather than students be required to take these classes every year.

671-460-J-We understand the need for qualified personnel to be delivering services to the children we serve.  However, the only way to be in compliance with this regulation would be to increase the size of our staff by adding teachers with content area endorsements or hire teachers with multiple endorsements.  Hiring teachers with multiple endorsements would not allow us to retain current teachers unless they were able to obtain additional endorsements.  Teachers with multiple endorsements are in higher demand and therefore would command a higher salary.  Both of these scenarios would significantly increase the operating costs of our programs, which would make the ability to comply with this regulation cost prohibitive.  We recommend the licensure requirements for the staff in our programs remain the same as the Regulations Governing the Operation of Private Day Schools for Students with Disabilities.

671-520-This regulation appears to be written for students working towards a standard or advanced diploma.  We request that language be added to this standard that takes into account students working on a special diploma to help facilitate the provision of a curriculum that may include functional living skills and community based instruction.

671-580-Having a specific regulation for virtual courses is redundant because the requirements of virtual courses are addressed in other law and regulation.  Our programs would either be accessing virtual courses through the local education agencies or contracting with vendors who provide virtual courses.  If it is necessary to have a regulation on virtual courses we recommend it state that virtual courses can only be offered through accredited providers as outlined in VAC §22.1-212.23 and VAC §22.1-253.13:3.

671-620-B-This regulation can be interpreted to mean whenever a general education student receives an in-school suspension, the local school district has to be notified within 24 hours.  We recommend this regulation be changed to reflect that it only applies to students receiving special education services.  Further, if an incident occurs at the end of the day on a Friday, it may be difficult to contact the Local Educational Agency within 24 hours.  Therefore, we recommend the requirement be changed to contacting the Local educational Agency by the end of the next business day.

671-650-A-1-2-Restraint and seclusion are written as prohibitions with the exception of emergency situations.  However, they are allowed in emergency situations under 671-660-D.  We recommend removing them from the list of prohibited actions because they are allowed both under the prohibited actions and elsewhere in the regulations.  Further, for some programs, other licensing agencies allow prone restraint.  We recommend the language “unless program is also licensed by another agency that allows prone restraint” to the regulation.  Finally, some of the commercial training programs for restraint include techniques for how to properly conduct a prone restraint.  Staff certified in the necessary training to perform a prone restraint without compromising the safety of the student.

671-650-A-4-The prohibition of limiting the frequency of contact may result in contacting these entities as a task avoidant behavior.  We recommend the wording be changed to reflect a reasonable amount of contact with these entities.

671-760-B-The utilization of fireproof file cabinets is a best practice albeit and expensive endeavor.  Should this regulation remain as written, we recommend a grace period to allow programs to budget appropriately for these expensive cabinets. 

Clarification

The proposed regulations include language that is vague and open to disparate interpretation by regulators.  We recommend each of the proposed regulations below be reviewed and the language changed to be more specific.

671-210-7-The use of the word drugs in this regulation is vague and could be interpreted to mean prescription medication. 

671-240-C-This regulation does not speak to the amount of funds staff handle and as written would mean that a staff member who is handling field trip money or even using student money to make a small purchase would need to be bonded. 

671-360-A-9-The meaning of the term “current” is unclear.  Please clarify if it is required for us to have an unexpired driver’s license on file.

671-370-A-3-This regulation can be interpreted to mean that all schools are required to have laboratories, play areas, and dining areas.

671-370.G- Section 671-370.G is written too broadly and without regard to what constitutes ‘aquatic-related activities’, or the necessity of a certified lifeguard to be on hand to provide meaningful life-saving assistance.   The proposed standard goes beyond what is required in Virginia Day Care Centers for requiring lifeguards, but falls short in providing actual safety.  The Virginia DSS Standards for Licensed Day Centers (effective 11/1/12) sensibly distinguish between wading and swimming in22 VAC 40-185-460.B.  The proposed standard also goes beyond what is required in residential regulations for requiring lifeguards, but falls short in providing activity-specific training and supervision.  The residential facilities standards are interpreted to recognize the difference between wading, swimming, and boating, and permit the teaching and provision of safety precautions specific to each activity.  As outlined by the National Resource Center for Health and Safety in Child Care and Early Education, having a lifeguard present is not enough when supervising very young children.  We recommend the regulations distinguish between wading swimming, and boating activities. Require staff supervision and staff-to-student ratios appropriate to age group and disability condition, and to each type of activity.  Require policies that ensure behavioral supervision of students during each type of activity. Require swimming activities in particular to be supervised by a lifeguard. Require schools that use boating activities as part of a recreation program to implement policies and procedures that ensure adequate staff supervision and the provision of safety equipment as required by law, and allow them to teach safe boating as it is practiced throughout Virginia. Requiring students and staff to wear their life jackets at all times during a boating activity would be a sensible additional provision.

671-460-Subsections D and E appear to be the same regulation.

671-480-A-We recommend specifying whether it is 30 business or calendar days for the development of the IIP.

671-520-C-Previous regulations have included practical arts in addition to fine arts.  Please clarify as to whether or not this is still the case.

671-570-C-The term “outside of school” is vague and can be interpreted to mean either outside of class or out in the community.

Inconsistency

            Several of the proposed regulations are in direct conflict with regulations by other licensing agencies for residential programs.  Allowing this conflict to exist may make it challenging for programs to remain in compliance with all licensing bodies.

671-400-A-To prevent contraband and to ensure the safety of all students, residential programs need to be allowed to conduct strip searches.  Currently, other licensing agencies that regulate residential programs have given approval for this activity for the aforementioned reasons.  We recommend the language “except when allowed to by other licensing agencies” be added to the end of this regulation.

671-660.D.3.f A residential school licensed by DSS is required to make serious incident reports within 24 hours (22 VAC 40-151-960). Incidents that occur on weekends at residential schools have not occurred on a school day, so the standard as written will generate confusion. The types of problem referred to in 671-700.A would occur as part of the residential domain for our school and potentially other residential schools, and so are already subject to DSS licensure requirements.  Additionally, physical restraints do not occur in the academic setting, but may occur in the residential setting.  Multiple layers of regulatory jurisdiction will potentially lead to confusion and predictably lower compliance rates.  Exempt residential schools from 671-700 when they are already following a comparable Serious Incident Report procedure required by another state licensing agency such as DSS.

Requests

Appeals process-There are times when our programs are in disagreement with the regulator on compliance issues and there is no safeguard to protect our programs when these disagreements occur.  Programs have gone from not requiring any corrective action with one regulator to a 15 page report of noncompliance with a different regulator in the next licensure cycle.  We recommend an appeals process be placed into the regulations to promote consistency amongst regulators.

Substantial Compliance-There are times that with the exception of a minor oversight, the program is in compliance with a regulation. Being found out of compliance for a minor issue requires a corrective action plan which may be labor intensive given the nature of the noncompliance.  Therefore, we recommend that when a program substantially complies with a regulation, they not be found out of compliance for it.

Provision of FAPE-There is an issue with the provision of FAPE for students who are being parentally placed in residential programs for non-educational reasons.  In these cases, local educational agencies have been slow to convene IEP meetings to determine how FAPE will be provided.  When FAPE is determined for the student in a residential program, it is sometimes homebound despite the school the residential program operates.  We request a safeguard be placed in these regulations that requires a timely convening of the IEP team after the student has been placed and that FAPE be provided within the school setting rather than in a homebound fashion.