Current through Register Vol. 40, No. 16, March 25, 2024
A. Age of eligibility.
1. A free appropriate public education shall
be available to all children with disabilities who need special education and
related services, aged two to 21, inclusive, who meet the definition of "age of
eligibility" as outlined in
8VAC20-81-10 and who reside within
the jurisdiction of each local educational agency. This includes children with
disabilities who are in need of special education and related services even
though they have not failed or been retained in a course or grade and are
advancing from grade to grade, and students who have been suspended or expelled
from school in accordance with the provisions of
8VAC20-81-160. The Virginia
Department of Education has a goal of providing full educational opportunity to
all children with disabilities aged birth through 21, inclusive, by 2015.
(§ 22.1-213 of the Code of Virginia;
34 CFR
300.101 and
34 CFR
300.109 )
a.
The services provided to the child under this chapter shall address all of the
child's identified special education and related services needs.
b. The services and placement needed by each
child with a disability to receive a free appropriate public education shall be
based on the child's unique needs and not on the child's disability.
2. Exceptions. The obligation to
make a free appropriate public education to all children with disabilities does
not apply to: ( 34 CFR
300.102(a) )
a. Children with disabilities who have
graduated from high school with a standard or advanced studies high school
diploma. This exception does not apply to age-eligible students who have
graduated but have not been awarded a standard or advanced studies high school
diploma, or to those students who have passed a high school equivalency
examination approved by the Board of Education.
b. Children with disabilities, aged 18 to 21,
inclusive, who, if in their last educational placement prior to their
incarceration in an adult correctional facility, were not identified as being a
child with a disability and did not have an IEP. This exception does not apply
to children with disabilities, aged 18 to 21, inclusive, who had been
identified as children with disabilities and had received services in
accordance with their IEPs, but who left school prior to their incarceration or
did not have IEPs in their last educational setting but who had actually been
identified as children with disabilities under this chapter.
c. Children with disabilities who are
eligible under IDEA Part B, Subpart H, but who receive early intervention
services under IDEA Part C.
B. A free appropriate public education shall
be available to children with disabilities who reside within a school division
but do not hold a valid U.S. citizenship or a student visa.
C. Program options. Each local school
division shall take steps to ensure that its children with disabilities have
available to them the variety of educational programs and services available to
children without disabilities in the area served by the local educational
agency, including art, music, industrial arts, consumer and homemaking
education, and vocational education. (
34 CFR
300.110 )
D. Residential placement. If placement in a
public or private residential program is necessary to provide special education
and related services to a child with a disability, the program, including
nonmedical care and room and board, shall be at no cost to the parents of the
child. ( 34 CFR
300.104 )
E. Assistive technology devices. (
34 CFR
300.34(b) and
34 CFR
300.113 )
1.
Each local educational agency shall ensure that the following are functioning
properly, including completing routine checks:
a. Hearing aids worn in school by children
with hearing impairments, including deafness; and
b. The external components of surgically
implanted devices.
2. A
local educational agency is not responsible for the postsurgical maintenance,
programming, or replacement of a medical device that has been surgically
implanted (or of an external component of the surgically implanted medical
device).
F. Availability
of assistive technology. ( 34 CFR 300.105 )
1. Each local educational agency shall ensure
that assistive technology devices or assistive technology services, or both, as
those terms are defined in
8VAC20-81-10, are made available to
a child with a disability if required as part of the child's:
a. Special education;
b. Related services; or
c. Supplementary aids and services.
2. On a case-by-case basis, the
use of school-purchased or leased assistive technology devices in a child's
home or in other settings is required if the child's IEP team determines that
the child needs access to those devices in order to receive a free appropriate
public education.
3. Local
educational agencies are not required to provide personal devices, including
eyeglasses or hearing aids that the child requires, regardless of whether the
child is attending school, unless the IEP team determines that the device is
necessary for the child to receive FAPE.
G. Transportation. (§ 22.1-221 of the
Code of Virginia; 34 CFR
300.107 )
1.
Each child with a disability, aged two to 21, inclusive, placed in an education
program, including private special education day or residential placements, by
the local school division shall be entitled to transportation to and from such
program at no cost if such transportation is necessary to enable such child to
benefit from educational programs and opportunities. Children with disabilities
and children without disabilities shall share the same transportation unless a
child's IEP requires specialized transportation.
2. If the IEP team determines that a child
with a disability requires accommodations or modifications to participate in
transportation, the accommodations or modifications shall be provided in the
least restrictive environment. Transportation personnel may be on the IEP team
or be consulted before any modifications or accommodations are written into the
student's IEP to ensure that the modifications and accommodations do not
violate any state or federal standard or any nationally recognized safety
practices.
3. A local educational
agency shall ensure that a child with a disability is provided a commute to and
from an education program that is comparable in length to the commute provided
to children without disabilities, unless the child's IEP team determines that a
longer or shorter commute is necessary to ensure the child receives a free
appropriate public education.
4. If
a local educational agency enters an agreement with another local educational
agency for the provision of special education or related services for a child
with a disability, such child shall be transported to and from such program at
no cost to the parent(s).
5. If a
child with a disability is placed in the Virginia School for the Deaf and the
Blind at Staunton, the Virginia school shall be responsible for the provision
of transportation services. When such children are educated as day students,
the local school division shall be responsible for the provision of
transportation services to and from school.
H. Nonacademic and extracurricular services
and activities. ( 34 CFR
300.107 and
34 CFR
300.117 )
1.
Each local educational agency shall take steps, including the provision of
supplementary aids and services determined appropriate and necessary by the
child's IEP team, to provide nonacademic and extracurricular services and
activities in the manner necessary to afford children with disabilities an
equal opportunity for participation in those services and activities. (See also
8VAC20-81-130 A 2)
2. Nonacademic and extracurricular services
and activities may include but not be limited to counseling services,
athletics, transportation, health services, recreational activities, special
interest groups or clubs sponsored by the local educational agency, referrals
to agencies that provide assistance to individuals with disabilities, and
employment of students, including both employment by the local educational
agency and assistance in making outside employment available.
I. Physical education. (
34 CFR
300.108 )
1.
General. Physical education services, specially designed if necessary, shall be
made available to every child with a disability receiving a free appropriate
public education, unless the local educational agency enrolls children without
disabilities and does not provide physical education to children without
disabilities in the same grade.
2.
Regular physical education. Each child with a disability shall be afforded the
opportunity to participate in the regular physical education program available
to children without disabilities, unless:
a.
The child is enrolled full time in a separate facility; or
b. The child needs specially designed
physical education, as prescribed in the child's IEP that cannot be provided in
the regular physical education program.
3. Special physical education. If specially
designed physical education is prescribed in a child's IEP, the local
educational agency responsible for the education of that child shall provide
the services directly or make arrangements for those services to be provided
through other public or private programs.
4. Education in separate facilities. The
local educational agency responsible for the education of a child with a
disability who is enrolled in a separate facility shall ensure that the child
receives appropriate physical education services in compliance with this
subsection.
J. Extended
school year services. ( 34
CFR 300.106 )
1. Each local educational agency shall ensure
that extended school year services, including transportation to and from such
services, are available as necessary to provide a free appropriate public
education consistent with subdivision 2 of this subsection.
2. Extended school year services shall be
provided only if a child's IEP team determines on an individual basis in
accordance with this chapter that the services are necessary for the provision
of a free appropriate public education to the child, because the benefits a
child with a disability gains during the regular school year will be
significantly jeopardized if extended school year services are not
provided.
3. In implementing the
requirements of this section, a local educational agency may not:
a. Limit extended school year services to
particular categories of disability;
b. Unilaterally limit the type, amount, or
duration of those services; or
c.
Limit the provision of extended school year services to only the
summer.
K.
Children with disabilities in public charter schools. (
34 CFR
300.209 )
1.
Children with disabilities who attend charter schools shall be served by the
local school division in the same manner as children with disabilities in its
other schools, including the provision of supplementary and related services on
site at the charter school to the same extent to which the local educational
agency provides such services on the site to its other public
schools.
2. The local school
division shall ensure that all requirements of this chapter are met.
L. Length of school day.
School-aged students with disabilities shall be provided a school day
comparable in length to the day provided to school-aged students without
disabilities unless their IEP specifies otherwise. For preschool-aged children
with disabilities, the IEP team determines the length of the school
day.
M. Methods and payments. (
34 CFR
300.103 )
1.
The Virginia Department of Education may use whatever state, local, federal,
and private sources of support that are available to meet the requirements of
this part.
2. Nothing in this part
relieves an insurer or similar third party from an otherwise valid obligation
to provide or to pay for services provided to a child with a
disability.
3. The Virginia
Department of Education will ensure that there is no delay in implementing a
child's IEP, including any case in which the payment source for providing or
paying for special education and related services to the child is being
determined.
N.
Disability harassment. Each local educational agency shall have in effect
policies that prohibit harassment to children with disabilities. (
28 CFR
35.149 and
34 CFR
104.4 )
Statutory Authority: §§ 22.1-16 and 22.1-214 of
the Code of Virginia; 34 CFR Part 300.