Good evening, I am speaking tonight on behalf of my son, a special education student who will have life-long disabilities to deal with, and I am here to express my opposition to the proposed regulations and to offer the BOE several alternatives for inclusion into the proposed regulations to level the playing field for children and their parents.

You have heard tonight a long list of changes proposed by the VDOE which will have major impacts and will detrimentally affect children with disabilities and their parent’s advocacy efforts.  The changes are extensive and unnecessary. 

Examples of some of the major issues include, but are not limited to:

·        eliminating parental consent to end some or all of a child’s special education and/or related services

·        Increasing the federal time frame for eligibility from 60 calendar days to 65 business days.  That is an additional 3-5 weeks.

·        adding limitations to when schools need to provide PWN

·        eliminating statewide referral procedures and timelines for Child Study Committees

·        adding the arbitrary refusal of LEAs to convene an IEP meeting if the LEA thinks a parent’s request is unreasonable

·        shifting the responsibility for the entire due process hearing system exclusively under the supervision of the VDOE

·        allowing schools to amend a parent’s due process complaint but not allowing parents to amend a school’s complaint

·        allowing VDOE to remove itself from being a party in a due process

·        inappropriately using federal authorities to add restrictive and unnecessary eligibility criteria for some disability categories

·        allowing school personnel to “diagnose” (versus “identify”) autism if the child is over 3 years old when they have no qualifications to do so

·        eliminating the use of short term objectives except for those pre-determined children being educated under the VAAP system

·        eliminating the due process implementation plan

·        reducing the number of progress reports provided to parents that measure the status of a child’s education

·        removing parental input from the functional behavioral assessment team

·        eliminating LEA requirement to submit copies of school policies and procedures to the VDOE for approval

All of these changes are to the detriment of the children whom the IDEA laws and regulations are designed to protect.  As you have heard tonight, the changes proposed by the VDOE are written to benefit school districts. 

The proposed regulations were not revised in an attempt to bring Virginia in line with the IDEA as VDOE has previously stated.  The proposed regulations were not revised to ensure compliance with the IDEA and its regulations.  In fact the proposed regulations do exactly the opposite of what federal law requires in many cases. The proposed regulations were not revised to clarify existing areas of ambiguity.  There are no areas of ambiguity in the current regulations.  The arbitrary and illogical changes place students with disabilities in significant danger of not receiving the free appropriate public education guaranteed to them.  However, the proposed changes clearly were written to benefit school divisions. 

How is it possible for the BOE to make decisions that will affect children with disabilities when you and the public were not provided a side-by-side comparison identifying the changes proposed by VDOE and the reasons for the changes?  When the BOE did not request this vital information, parents and advocates did, but we were denied such a comparison by the VDOE. 

How can the BOE rely solely on the accuracy of the summaries developed by the very organization that proposed the massive changes in favor of the school districts in the first place?  Isn’t this the fox guarding the hen house?  Why hasn’t the BOE insisted on an impartial organization to review and summarize the comments and the impact that the changes will have on children and parents, and school divisions? 

How could the BOE have accepted the Economic Impact Analysis done by the VDOE?  What kind of analysis is:  Quote “The benefits likely exceed the costs for one or more proposed changes.  There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.” End quote.  If there is insufficient data to report on the costs v. benefits then leave the regulations alone until the VDOE produces the data for public review. 

It is clear from the list of examples that I just presented that the VDOE and its staff are advocates for the LEA's.

The facts speak for themselves.  The proposed VDOE changes leave no alternative for parents but to force them into financially draining due process situations.  

To bring this unbalance back to a level playing field I recommend that the following changes be clearly and succinctly added to the proposed regulations.

• Add a section that the VDOE shall post due process hearing decisions on the VDOE website, by hearing officer, without the extensive redaction as is currently practiced by VDOE so parents can be informed about which LEAs are in compliance with the law and which are not
• Add a section that  the VDOE shall post due process hearing appeal information on the VDOE website so parents will know which decisions are not final
• Add a section that the VDOE shall post complaint letters of findings on the VDOE website, by complaint specialist, so parents can be informed which LEAs are in compliance with the law and whether or not the VDOE is correcting the violating school district
• Require hearing officers remain impartial and unbiased and not under the supervision of VDOE
• Add a section that the VDOE shall provide parents the same case law accessibility (such as the electronic IDELR library) during due process hearings that it provides to hearing officers and school districts
• Add a section on the admissibility of state complaints in due process hearings for parents. School divisions currently use other children’s state complaint letters of finding against parents in due process hearings and court proceedings.
• Require due process hearings be held on neutral territory
• Add a section that the burden of proof in due process hearings be on the school division
• Add a section on allowing parents to recoup expert witness fees when they are the prevailing party in a due process hearing
• Add a section requiring clarification between when speech and language services are specially designed instruction because a child has a speech and language impairment (and thus has speech and language as a disability category) and when speech and language services are related services required to assist a child with a disability to benefit from his specially designed instruction
• Add a section on restricting LEAs from using other children’s education records, state complaints, and/or due process hearing decisions to defend itself in a due process hearing
• Add a section that clarifies that IEPs must be in effect at the beginning of the school year, not just “in process”
• Add a section that parents can refuse an LEAs request to convene an IEP meeting if the parent thinks the LEA’s request is unreasonable
• Clearly define the terms “placement” and “school” particularly regarding the placement of children by their parents if FAPE is at issue
• Define the ambiguous terms “reasonable”, “unreasonable”, and “exceptional circumstances” as they apply to parents, school division, and the VDOE.  The VDOE has previously stated that 10 business days is reasonable – lets make it statutory
• Add a section that LEAs shall make education records available in one location for parental review
• Add a section that LEAs will be held accountable for destroying education records, such as testing data and electronic correspondence, when the LEA is put on notice that due process has been requested
• And finally, let’s not let Virginia be the last state to eliminate the disrespectful and degrading terms “mental retardation” and “emotional disturbance” from its publications and vocabulary.

Governor Kaine has made his position very clear.  Unless there is some incredibly persuasive explanation why the regulations have to be changed to diminish the role of parent’s involvement in key educational decisions, he says we’re going back to the drawing board.  We need to go back to the drawing board.  The impact of these proposed regulations will diminish decades of hard work that has established FAPE for students with disabilities.  The current regulations are superior to the proposed regulations and do not require the wholesale revisions that is being proposed by the VDOE.  I urge you to reject the proposed regulations in its entirety.

Thank you.

Jackie Simchick