Type

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 noneducational 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.

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