Great information 

_________________________________

Mae

I am concerned about the following:8VAC20-671-540. Transition services.

A.  Schools shall cooperate with the public schools to ensure that the transition plan for each student with a disability, beginning at age 14, (or younger), is implemented according to the child?s IEP. 

B.  Schools shall provide evidence of transition services designed within an outcome-oriented process for all students, as appropriate, that promotes movement from the private school to a public school the child would normally attend;

Why must the child trasition to the public school? This is discriminatory against the private schools. The goal may be to see the child transition to a traditional school setting but even this may not be in the best interest of the child. There should not be oppositon by this department to private schools if that is the choice of the parents. The child belongs to the parent. The parent makes the final determination as to how the child should be educated.

If I have misconstued the intent of the above section, please contact me with a clarifying explanation.

Thank you.

            The Virginia Association of Independent Specialized Education Facilities (VAISEF) applauds the Virginia Department of Education’s efforts in developing the draft Regulations Governing the Operation of Private Schools for Students with Disabilities.  Consistent with the goals of the Department, VAISEF aims to provide the best possible education to the children we serve.  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 jeopardizes 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 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.

The Hughes Center for Exceptional Children is a VAISEF accredited organization, and is in agreement with the VAISEF statement.  

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 jeopardizes 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 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.

My name is Wade Puryear, and I am Associate Director of Programs for Elk Hill, a non-profit organization serving Virginia’s youth and families since 1970 and a member of VAISEF. Elk Hill operates three private schools for students with disabilities located in Goochland County, Henrico County, and the City of Charlottesville.  Last year our schools served a total of 164 students including day and residential students from all areas of the state, and we support the VAISEF public statement

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 jeopardizes 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 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.

Specialized Youth Services of Virginia  operates two accredited special education facilities in the state and we support VAISEF's position regarding the proposed regulations.

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 jeopardizes 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 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.

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 jeopardizes 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 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.

I am writing to voice my support for the position paper submitted by the Virginia Association of Independent Specialized Education Facilities. I have included the contents of that paper below.

In addtion, I would like to add a comment regarding 671-460-J (Teacher licensure/endorsements).  Most of our schools serve students with signficant learning, emotional, and behavioral challenges who can no longer be served in the public school setting.  By requiring our teachers to be endorsed in special education and  each of the content areas that they teach, it would eradicate the use of self-contained classrooms.  Our students have great difficulty with transitions, self-regulation, social skills and organizational skills.  Forcing our teachers to be endorsed in content areas too would mean that any teacher in a self contained classroom would need to be endorsed in Special Education and every content area subject they teach.  Or, if they would be required to be endorsed in such a way, schools would have to stop using self-contained classrooms which goes against the good work we are trying to do to help these students.  For some students, that model is a big part of why they are successful and learning.

I implore you to reconsider changing the requirements for teacher endorsements for our schools.  It would have a very negative impact on our ability to program for some of the most challenging students in our state.

Thank you.

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 jeopardizes 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 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.

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.

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.

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.

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.

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.

Please take these recommendations into account especially the recommendations that address staffing issues. 

I am Principal of Rivermont School-Chase City, a private day school that has been in existence since 1996. We are a proud accredited member of VAISEF and support the organization's recommendations, requests for clarification, comments on inconsistencies and requests. I am including a copy of the VAISEF Response.

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 jeopardizes 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 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.

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 jeopardizes 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 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.

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.

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.

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.

Rivermont School is a private day school and is an accredited member of VAISEF.  I support the recommendations made.

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 jeopardizes 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 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.

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 jeopardizes 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 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.

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 jeopardizes 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 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.

Recommendations

Some of the proposed regulations are vague, open to interpretation, or not feasible.  Below I 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 alloId the Department to grant exceptions for good reason.  I 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.  I 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.  I 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-I 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. I 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, I 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-I appreciate the attempt of this standard to conform to the current regulations regarding school construction in Virginia for self-contained classrooms.  HoIver, 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.  .  I are not aware of evidence demonstrating students with disabilities will benefit from having this much available space in the classroom.

I 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, I 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.  I recommend that the grandfather clause should continue to exist should a program change.  Finally, I 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 I recognize the necessity of tornado drills, they can be extremely disruptive to our learning environments which jeopardizes students’ ability to learn.  I recommend requiring the same number of tornado drills as the public schools.

671-410-D-I 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.  I recommend this standard be changed so that only non-educationally placed students have their records requested from the superintendent. 

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

671-430-A-I recognize the importance of collaborating with our community.  HoIver, the programs I operate require specialized knowledge about the population I serve and seeking input from citizens and the community who may lack that knowledge may be detrimental.  I certainly Ilcome feedback from stakeholders in our programs and therefore recommend the language be changed from community to stakeholder.  Further, I 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 alloId us to be successful in working with the children I serve.  HoIver, these goals and objectives may not be written in measurable terms.  I 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-I recognize the importance for students to participate in physical education and health.  HoIver, 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.  I 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-I understand the need for qualified personnel to be delivering services to the children I serve.  HoIver, 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 Ire 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.  I 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.  I 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 I 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.  I 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, I 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.  HoIver, they are alloId in emergency situations under 671-660-D.  I recommend removing them from the list of prohibited actions because they are alloId both under the prohibited actions and elsewhere in the regulations.  Further, for some programs, other licensing agencies allow prone restraint.  I 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.  I 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, I 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.  I recommend each of the proposed regulations below be revieId 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 betIen 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 betIen 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.  I recommend the regulations distinguish betIen 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 Iar 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-I 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 alloId to conduct strip searches.  Currently, other licensing agencies that regulate residential programs have given approval for this activity for the aforementioned reasons.  I recommend the language “except when alloId 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 Iekends 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 loIr 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.  I 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, I 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.  I 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.

I would like to add my voice in support of the VAISEF Recommendations submitted 12/17/12.  Being both a parent of a special ed student and someone working in the field, I have experienced both sides of this issue and these VAISEF Recommendations present meaningful comments addressing the issues as I have experienced them.

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 jeopardizes 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 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.

671-370-A-2- We are opposed to the regulation requiring 50 square feet per occupant in a classroom.  Our building was built in 1989 in conformance with existing building codes and local regulations and was built specifically for the purpose of serving the population that we serve. Our classrooms do not meet this new standard.  In spite of that we feel that the building serves our purposes extremely well and in fact many parents and visitors (including VDOE personnel) comment on how attractive and functional our building is. I am not aware of any comments that the classrooms are not of adequate size; to the contrary their size was specifically considered as we designed the building as one of the ways to improve classroom management. In addition much of our education requires individual and small group sessions such that in addition to the classrooms there are many small work areas. These areas are not calculated in the classroom square footage but are an available resource for when a student may need additional space.

Imposing a cookie cutter requirement limits our ability to design facilities to meet the specific needs of special populations and for special services. It is a misguided requirement that will create financial hardships for providers and could result in reduced services for students with disabilities.

We are not aware of evidence demonstrating students with disabilities will benefit from having this much available space in the classroom.  Please remove this space requirement from the regulations.

AAs the Executive Director of The Dominion School which serves ED and LD adolescents in the northern region of Virginia and as an accredited member of VAISEF, I fully support VAISEF's comments in relation to the Proposed Regulations for Governing the Operation of Private Schools for Students with Disabilities as stated below.

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 jeopardizes 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 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.

I am writing on behalf of Timber Ridge School as Executive Director. Timber Ridge School is an active VAISEF member and supports the VAISEF position statements below. 

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 jeopardizes 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 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.

As an Administrator and CFO at The Dominion School in Springfield, VA., a private therapeutic day school serving ED and LD adolescents in the northern region and as an accredited member of VAISEF, I fully support VAISEF's position on the Proposed Regulations Governing the Operation of Private Schools for Student's with Disabilities as stated below.

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 jeopardizes 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

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 jeopardizes 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 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.

As the Science Teacher at The Dominion School in Springfield, Va. which serves ED and LD adolescents in the northern region and as an accredited member of VAISEF, I support VAISEF's position on the Proposed Regulations Governing the Operation of Private Schools for Students with Disabilities as stated below:

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 jeopardizes 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 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.

Rivermont School is a VAISEF member/accredited member and I support the VAISEF statements.

I support the VAISEF recommendations regarding the proposed VDOE regulations as follows:

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 jeopardizes 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 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.

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 jeopardizes 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 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.

TypeRecommendations

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 s over this text and enter your comments here. You are limited to approximately 3000 words.

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 jeopardizes 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 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.

My name is Sue Horstman and I am the Educational Coordinator at The Dominion School in Springfield, VA.  My school is a small, private sp. ed. school for ED and LD adolescents and we are an accredited member of VAISEF and I support the following VAISEF position statement on the proposed Regulations Governing the Operation of Private Schools for Students with Disabilities.  Thank you for your attention to this matter.

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 jeopardizes 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 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.

671-210-7 The word "drugs" in this regulation should reflect illegal drugs and  prescription drugs not prescribed to student.

671 - 350-H  Please clarify what is meant by 15 additional hours of annual training.  Does this mean in addition to what is stated in 671-350-A,B,C,D,E,F,G?  Does the word "his" in this regulation need to be changed to be more politically correct?

671 370-A-2 It would be very difficult for my school to be able to accommodate this regulation once it is approved.  There needs to be something to give leeway to programs who already have established instructional area's that do not meet the 50 square feet per person criteria.  This would be a major cost to many programs to update their physical plant to meet this requirement.  There needs to be some sort of grandfather clause that states established classrooms do not need to meet this requirement, however, future renovations or buildings need to.  This would be easy to regulate because our schools are required to submit any program or building changes to the VDOE and it must be approved before it can be done.

671-380-C  I think that 3 tornado drills per year is way too many.  This is a major disruption to school days and may not seem as though it can cause much disturbance, but it can.  I think that tornado drills are appropriate, but we only need to complete one per year.

671-460-G The language in this proposed regulation needs to be changed to be consistent with graduation requirements

671-520-F  Who is ultimately responsible for providing guidance and counseling to students to ensure that a program of studies contributing to the student's academic achievement and meeting graduation requirements are being followed?  It is ultimately the Public School's responsibility to ensure that the IEP is being written accurately and followed, should it not be their responsibility to make sure this guidance and counseling is taking place as well?

671-580 The regulation should be modified to 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 should state that these people need to be notified by the end of the next business or school day. 

671-640  Recommend that this regulation have part A and part B.  Part A would cover students who are placed in time out and part B would cover students who choose to be in time out.  The regulation as it states now goes back and forth between the two instances of using time-out and should be modified to be more clear.  I also believe that time out area's or rooms need to have locks on them, but locks that are spring loaded so they can only remain locked if a staff member is holding it.  There are several reasons for this.  If a students is placed in a time-out room they may still be physically out of control and the continuous use of restraint during this time may cause more injury to staff members and the student being restrained.  If a student is given the opportunity to release some anxiety, stress, or frustration in a setting such as a time-out room there will be less injury.  Also, if there are no locks on the doors or no doors at all students can continuously try to harm staff members by trying to leave the room they are asked to go to.  During this time the intent of the student leaving the room is often unknown and they may try to go hurt someone, flee the building, or want to hurt themselves.  If the student can be contained in an area and monitored for safety there would be less injury to self or others.

671-650-A-1  Restraint and seclusion are listed here in prohibitions, but they aren't prohibited so they should be removed from this section.  It is clearly defined in  671-660-D when seclusion and restraint can be used.

671-660-A-2 If prohibiting prone restraint then supine and side lying restraints should be considered prohibited as well.

671-660-D-1  The language should be modified, in regards to property damage, to state that "causing severe property damage that may result in physical injury to student or

I am a VAISEF member and Rivermont School - Tidewater is accredited by VAISEF.  I support the VAISEF statement.

671-380-C: The safety of our students is extremely important.  However, 3 tornado drills is too many.  It causes a distruption during the school day.  I believe 1 per semester would be appropriate.

671-370-A-2: Requiring that all classrooms need to be 50 square feet per person would be difficult to accommodate, especially for the schools that have already been established.  It would also be costly to change.  This could possibly be a requirement for schools that are being built. 

671-370-A-2

I do not agree with schools/programs having to meet the criteria of 50 square feet per person.

Rivermont is an accredited VAISEF member and I support the VAISEF statements.

8VAC20-671-360. Personnel Records: It should be acceptable to demonstrate compliance with this requirement through access to an organization's electronic personnel management system rather than strictly through hardcopy personnel records. This information (Dept. of Motor Vehicle Checks and current drivers' licenses) is readily accessible in an electronic system and it would be inefficient and otherwise unnecessary to print the information for the purpose of maintaining it in hardcopy form.

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 jeopardizes 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 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.

The senior staff of the Virginia Institute of Autism, a VAISEF accredited day school, supports the above position statement submitted by VAISEF.  These points align with many that were included in our letter submitted directly to Dr. Ruffin on December 10. 

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.

In the case where individual staff support is needed in order for a student to function successfully in the classroom, the additional support staff would take up 50 sq ft of space that could have been used to serve the needs of another student.

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 jeopardizes 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 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.

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 jeopardizes 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 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.

Have we asked ourselves….. What is so special about Special Education??? Let me tell you…. Not all students are able to meet curriculum needs at the pace required. Our students require special accommodations and modifications during their day to be successful. I teach in a self-contained room. There is no way for me to be certified in each educational category. My students are not able to transition to other classes and have several teachers during the day. They need the consistency of a classroom to be successful. They are not able to follow the curriculum at a normal pace set as they struggle to retain information. Lessons are slowed down to maximize the amount of information they are able to learn. The reasons why students have IEPs are because they each require INDIVIDUALZIED EDCUCATION PLANS to be successful. Today we are so focused on teaching directly from the book that we are sending our students with special needs out into a world unprepared as they cannot take care of themselves or hold jobs. Learning in school is much more than textbook information. We MUST teach our students survival skills.  My students need daily prompts to be dressed appropriate, how to act appropriate, how to count money, how to address letters, how to wash their clothing, how to prepare simple foods, how to shop with a budget….and so much more. Our students are being robbed of the education they deserve. I get that we need to teach English, Writing, Math, History, Science….I understand this importance…...but when do we look at preparing our students to be the best independent citizens that give back to their communities and are able to be successful adults???

I was very blessed to work at Phillips while working on completing my Master’s Degree and obtaining my licenses.  This allowed me to take what I was learning in my classrooms and apply it right away with my students, learn what worked, and allowed me to adapt for their success.  I can study to be a biologist….just because I study to become one and I earn my degree does not mean I will be a great biologist.  Special Education Teachers are a special breed of teachers. If I had my way….all teachers would go through the Special Education Program before going on to become certified in which ever academic field they chose… Education is about the student…

The below comments are supported by me for the benefit of my students not on what the government says will benefit them.

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 jeopardizes 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 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.

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 jeopardizes 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 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.