Virginia Regulatory Town Hall
Agency
Department of Education
 
Board
State Board of Education
 
Guidance Document Change: The VDOE Supplemental Guidance for Evaluation and Eligibility in Special Education was developed to assist Individualized Education Program (IEP) and Eligibility teams, including parents, as they engage in evaluation, eligibility determinations, and decisions regarding the need for related services. This guidance is an addendum to the Virginia Department of Education’s Guidance on Evaluation and Eligibility for Special Education and Related Services. This document was developed in response to Recommendations 1 and 2 from the Joint Legislative Audit and Review Commission (JLARC) 2020 report on K-12 Special Education in Virginia. The Supplemental Guidance provides information about data sources that may be used to inform eligibility for special education services or a need for a related service, as well as information to assist in the local interpretation for terminology in Virginia special education regulations that are not clearly defined (e.g., determining “adverse educational impact” and determining “need for specially designed instruction”). The Sample Eligibility Forms and Disability Worksheets reflects a revision to the existing Guidance on Evaluation and Eligibility for Special Education Appendix (Sample Evaluation and Eligibility Forms). This revision was made in response to Recommendation 2 from the Joint Legislative Audit and Review Commission (JLARC) 2020 report on K-12 Special Education in Virginia. The sample forms and worksheets are provided to assist Local Educational Agencies (LEA) in documenting eligibility determinations in accordance with the criteria contained in the Regulations Governing Special Education Programs for Children with Disabilities in Virginia.
Previous Comment     Next Comment     Back to List of Comments
9/13/21  6:24 pm
Commenter: Mari Hommel

Extend timeline to revisit Trauma, Toxic Stress, and ACEs discussion, and to engage in comprehensive
 

Timeline Issue

The notice of this proposal indicates that VDOE proposes a September 16, 2021, effective date for these guidelines. Given the following factors, this timeline must be extended in order to allow for revision, and possibly even for additional comment. The factors are:

(1) The seriousness of the decisions that will be made according to these guidelines, once they are put into effect, demands greater scrutiny;

(2) The fact that these guidelines are proposed in response to JLARC’s criticisms about vagueness and lack of specificity in VDOE’s current guidelines for evaluation procedures and determination of eligibility means that they should strive for clarity and specificity;

(3) Common themes in the substantive comments that have been posted in opposition to the application of these proposed guidelines are that they invite subjectivity and that they perpetuate a bias against students of color and students who are English Language Learners who also are students with disability; and

(4) The discussion of Trauma, Toxic Stress, and Adverse Childhood Experiences in these proposed guidelines fails to clarify that a child who has had such experiences may also simultaneously be eligible for special education services as a child with a disability.

Trauma, Toxic Stress, and Adverse Childhood Experiences Issue

The proposed guidelines address “Trauma, Toxic Stress, and Adverse Childhood Experiences.” The discussion (pages 17-18) recognizes that research has concluded that these experiences may adversely affect the developing brain and result in long-term consequences, including impairments in concentration, memory, executive functioning, language development, and the ability to self-regulate emotions and behaviors. Yet, instead of stating clearly that a child with a history of such experiences may also be deemed to have a disability as defined by IDEA, the discussion seems to invite subjectivity in this assessment, and concludes with the suggestion that the student might be adequately supported with strategies and interventions other than special education services.

I suggest that in order to achieve clarity and avoid subjectivity, a definitive statement should be inserted toward the end of the discussion of Trauma, Toxic Stress, and ACEs, as follows (revision in italics):

… Some of these effects can present similarly to other conditions, such as attention deficit hyperactivity disorder (ADHD), as well as other IDEA disability categories. Data indicating that the child has experience with such events cannot be used to exclude the child from further consideration for eligibility as a child with a disability. Rather, additional data related to the suspected area(s) of disability must be considered in conjunction with the child’s history regarding trauma, ACEs, or toxic stress. Additionally, there are a range of responses to trauma, ACEs, and toxic stress depending on individual factors. Thus, absent a determination of eligibility for special education services under IDEA after full consideration and appropriate assessment, a tiered system of supports may be beneficial in providing preventative strategies and interventions to support students who have experienced trauma, ACEs, or toxic stress.

Other Revision Issues

The JLARC report concluded that the current guidance from VDOE regarding evaluation and eligibility were too vague, such that they were open for varying interpretations by local school divisions, which was resulting in a situation in which a child with a disability could be provided special education services, or not, based upon which attendance zone or school division they live in. Clearly, it is expected that the vagueness cited by JLARC will be cured with specificity and clarity in the new guidelines. What was expected was that a model would be established. Acceptable thresholds would be recognized, even if not mandated, and that best practices for making decisions about cultural and linguistic differences would be provided. Yet, while the VDOE proposed guidelines add more words to the pre-existing guidance, the lack of clarity and standards remains a problem. The crux of that problem is that the proposed guidelines encourage subjectivity, even about decisions for which legal or professional standards have been established.

In contrast to the subjectivity of VDOE’s currently proposed guidelines, the comments that have been posted in this forum since August 24, 2021, in many instances present the level of clarity and specificity that VDOE should be striving toward. In other words, the comments generated here should be considered and incorporated by VDOE in a substantially revised proposal. This would necessitate an extension of the effective date that has been proposed by VDOE. It is possible that with an extension, VDOE will collect even more useful suggestions. Although it is not my intent to restate all of the points raised in posts to date, some of the posts point out areas for which specific and objective guidance can be provided through revisions:

• Evaluation of vision and hearing requires certain comprehensive assessments which can be identified, not mere screening;

• RtI cannot be used to delay evaluation of a child suspected of having a disability;

• Mere evidence of a child’s cultural and linguistic “differences” is not, without further assessment, a factor that rules out that child’s eligibility for special education;

• Some language in the guidelines appears to be racially biased;

• A child’s actual or assumed lack of proficiency in the English language due to family history does not in and of itself rule out a possible neurological disability, and there are assessments that measure these factors objectively;

• An eligibility team may not refuse to give weight to an independent evaluation on the basis that it does not purport to be a medical diagnosis; • IQ test scores reported by psychologists should not be categorically dismissed as insignificant;

• Subtest scores in psychoeducational assessments are significant and should not be disregarded;

CommentID: 99928