Current through Register Vol. 40, No. 16, March 25, 2024
A. Responsibility. The local educational
agency shall ensure that an IEP is developed and implemented for each child
with a disability served by that local educational agency, including a child
placed in a private special education school by: (34
CFR 300.112)
1. A local school division; or
2. A noneducational placement by a
Comprehensive Services Act team that includes the school division. The local
school division's responsibility is limited to special education and related
services.
B.
Accountability.
1. At the beginning of each
school year, each local educational agency shall have an IEP in effect for each
child with a disability within its jurisdiction, with the exception of children
placed in a private school by parents when a free appropriate public education
is not at issue. (34 CFR
300.323(a))
2. Each local educational agency shall ensure
that an IEP: (34 CFR
300.323(c))
a. Is in effect before special education and
related services are provided to an eligible child;
b. Is developed within 30 calendar days of
the date of the initial determination that the child needs special education
and related services;
c. Is
developed within 30 calendar days of the date the eligibility group determines
that the child remains eligible for special education and related services
following reevaluation, if the IEP team determines that changes are needed to
the child's IEP, or if the parent requests it; and
d. Is implemented as soon as possible
following parental consent to the IEP.
3. Each local educational agency shall ensure
that: (34 CFR
300.323(d))
a. The child's IEP is accessible to each
regular education teacher, special education teacher, related service provider,
and other service provider who is responsible for its implementation;
and
b. Teachers and providers are
informed of:
(1) Their specific
responsibilities related to implementing the child's IEP; and
(2) The specific accommodations,
modifications, and supports that shall be provided for the child in accordance
with the IEP.
4. Each local educational agency is
responsible for initiating and conducting meetings to develop, review, and
revise the IEP of a child with a disability.
5. Each local educational agency shall ensure
that the IEP team reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals are being achieved and to
revise its provisions, as appropriate, to address: (34
CFR 300.324(b))
a. Any lack of expected progress toward the
annual goals and in the general curriculum, if appropriate;
b. The results of any reevaluation conducted
under this chapter;
c. Information
about the child provided to or by the parent;
d. The child's anticipated needs;
or
e. Other matters.
6. Each local educational agency
shall provide special education and related services to a child with a
disability in accordance with the child's IEP. (34 CFR
300.323(c)(2))
7. Nothing in this section limits a parent's
right to ask for revisions of the child's IEP if the parent feels that the
efforts required by this chapter are not being met.
8. To the extent possible, the local
educational agency shall encourage the consolidation of reevaluation and IEP
team meetings for the child. (34 CFR
300.324(a)(5))
9. In making changes to a child's IEP after
the annual IEP team meeting for the school year, the parent and the local
educational agency may agree not to convene an IEP team meeting for the
purposes of making those changes, and instead may develop a written document to
amend or modify the child's current IEP. (34
CFR 300.324(a)(4) and (6))
a. If changes are made to the child's IEP,
the local educational agency shall ensure that the child's IEP team is informed
of those changes.
b. Upon request,
a parent shall be provided with a revised copy of the IEP with the amendments
incorporated.
c. This meeting is
not a substitute for the required annual IEP meeting.
C. IEP team.
1. General. The local educational agency
shall ensure that the IEP team for each child with a disability includes:
(34 CFR
300.321(a), (c) and (d))
a. The parent of the child;
b. Not less than one regular education
teacher of the child (if the child is or may be participating in the regular
educational environment);
c. Not
less than one special education teacher of the child or, if appropriate, not
less than one special education provider of the child. For a child whose only
disability is speech-language impairment, the special education provider shall
be the speech-language pathologist;
d. A representative of the local educational
agency who is:
(1) Qualified to provide or
supervise the provision of specially designed instruction to meet the unique
needs of children with disabilities;
(2) Knowledgeable about the general education
curriculum; and
(3) Knowledgeable
about the availability of resources of the local education agency. A local
educational agency may designate another member of the IEP team to serve
simultaneously as the agency representative if the individual meets the above
criteria;
e. An
individual who can interpret the instructional implications of evaluation
results. This individual may be a member of the team serving in another
capacity, other than the parent of the child;
f. At the discretion of the parent or local
educational agency, other individuals who have knowledge or special expertise
regarding the child, including related services personnel, as appropriate. The
determination of knowledge or special expertise of any individual shall be made
by the party (parent or local educational agency) who invited the individual to
be a member of the team; and
g.
Whenever appropriate, the child.
2. The local educational agency determines
the school personnel to fill the roles of the required IEP team members in
subdivisions 1 b through 1 e of this subsection.
3. Secondary transition service participants.
(34 CFR
300.321(b))
a. The local educational agency shall invite
a student with a disability of any age to attend the student's IEP meeting if a
purpose of the meeting will be the consideration of:
(1) The student's postsecondary
goals;
(2) The needed transition
services for the student; or
(3)
Both.
b. If the student
does not attend the IEP meeting, the local educational agency shall take other
steps to ensure that the student's preferences and interests are
considered.
c. To the extent
appropriate and with the consent of the parent or a child who has reached the
age of majority, the local educational agency shall invite a representative of
any participating agency that is likely to be responsible for providing or
paying for transition services. If an agency invited to send a representative
to a meeting does not do so, the local educational agency shall take other
steps to obtain the participation of the other agency in the planning of any
transition services.
4.
Part C transition participants. In the case of a child who was previously
served under Part C of the Act, the local educational agency shall, at the
parent's request, invite the Part C service coordinator or other
representatives of the Part C system to the initial IEP meeting to assist with
the smooth transition of services. (34 CFR
300.321(f))
D. IEP team attendance.
(34 CFR
300.321(e))
1. A required member of the IEP team
described in subdivisions C 1 b through C 1 e of this section is not required
to attend an IEP team meeting, in whole or in part, if the parent and the local
educational agency agree, in writing, that the attendance of this member is not
necessary because the member's area of the curriculum or related services is
not being modified or discussed in the meeting.
2. A required member of the IEP team may be
excused from attending the IEP team meeting, in whole or in part, when the
meeting involves a modification to or discussion of the member's area of
curriculum or related services, if:
a. The
parent and the local educational agency consent in writing to the excusal;
and
b. The member submits, in
writing, to the parent and the IEP team input into the development of the IEP
prior to the meeting.
E. Parent participation.
1. Each local educational agency shall take
steps to ensure that one or both of the parents of the child with a disability
are present at each IEP meeting or are afforded the opportunity to participate
including: (34 CFR
300.322(a))
a. Notifying the parent of the meeting early
enough to ensure that they will have an opportunity to attend; and
b. Scheduling the meeting at a mutually
agreed on time and place.
2. Notice. (34 CFR
300.322(b))
a. General notice. The notice given to the
parent:
(1) May be in writing, or given by
telephone or in person with proper documentation;
(2) Shall indicate the purpose, date, time,
and location of the meeting, and who will be in attendance; and
(3) Shall inform the parent of the provisions
relating to the participation of other individuals on the IEP team who have
knowledge or special expertise about the child under subdivision C 1 f of this
section.
b. Additional
notice requirements are provided if transition services are under
consideration.
(1) For Part C transition, the
notice shall inform the parents of the provisions relating to the participation
of the Part C service coordinator or other representative of the Part C system
under subdivision C 4 of this section.
(2) For secondary transition, the notice
shall also:
(a) Indicate that a purpose of the
meeting will be the consideration of the postsecondary goals and transition
services for the child;
(b)
Indicate that the local educational agency will invite the student;
and
(c) Identify any other agency
that will be invited to send a representative.
3. If neither parent can attend,
the local educational agency shall use other methods to ensure parent
participation, including individual or conference telephone calls and audio
conferences. If the local educational agency uses an alternative means of
meeting participation that results in additional costs, the local educational
agency is responsible for those costs. (34 CFR
300.322(c))
4. A meeting may be conducted without a
parent in attendance if the local educational agency is unable to convince the
parent that they should attend. In this case, the local educational agency
shall have a record of the attempts to arrange a mutually agreed on time and
place, such as: (34 CFR
300.322(d))
a. Detailed records of telephone calls made
or attempted and the results of those calls;
b. Copies of correspondence (written,
electronic, or facsimile) sent to the parent and any responses received;
or
c. Detailed records of visits
made to the parent's home or place of employment and the results of those
visits.
5. The local
educational agency shall take whatever action is necessary to ensure that the
parent understands the proceedings at the IEP meeting, including arranging for
an interpreter for parents with deafness or whose native language is other than
English. (34 CFR
300.322(e))
6. At the IEP meeting, the IEP team shall
provide the parent of a child with a disability with a written description of
the factors in subdivisions F 1 and F 2 of this section that will be considered
during the IEP meeting. The description shall be written in language
understandable by the general public and provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly
not feasible to do so.
7. The local
educational agency shall give the parent a copy of the child's IEP at no cost
to the parent at the IEP meeting, or within a reasonable period of time after
the IEP meeting, not to exceed 10 calendar days. (34 CFR
300.322(f))
8. If the local educational agency elects to
use a draft version of an IEP in any IEP team meeting, such draft shall be
developed and a copy shall be provided to the parent at least two business days
in advance of the IEP meeting.
F. Development, review, and revision of the
IEP. (34 CFR
300.324(a))
1. In developing each child's IEP, the IEP
team shall consider:
a. The strengths of the
child;
b. The concerns of the
parent for enhancing the education of their child;
c. The results of the initial or most recent
evaluation of the child; and
d. The
academic, developmental, and functional needs of the child.
2. The IEP team also shall:
(34 CFR
300.324(a))
a. In the case of a child whose behavior
impedes the child's learning or that of others, consider the use of positive
behavioral interventions, strategies, and supports to address the
behavior;
b. In the case of a child
with limited English proficiency, consider the language needs of the child as
those needs relate to the child's IEP;
c. In the case of a child who is blind or
visually impaired, provide for instruction in Braille and the use of Braille
unless the IEP team determines after an evaluation of the child's reading and
writing skills, needs, and appropriate reading and writing media, including an
evaluation of the child's future needs for instruction in Braille or the use of
Braille, that instruction in Braille or the use of Braille is not appropriate
for the child;
d. Consider the
communication needs of the child;
e. Consider the child's needs for benchmarks
or short-term objectives;
f. In the
case of a child who is deaf or hard of hearing, consider the child's language
and communication needs, opportunities for direct communications with peers and
professional personnel in the child's language and communication mode, academic
level, and full range of needs, including opportunities for direct instruction
in the child's language and communication mode; and
g. Consider whether the child requires
assistive technology devices and services.
3. If, in considering the special factors,
the IEP team determines that a child needs a particular device or service,
including an intervention, accommodation, or other program modification in
order for the child to receive a free appropriate public education, the IEP
team shall include a statement to that effect in the child's IEP.
(34 CFR
300.324(b)(2))
4. The regular education teacher of a child
with a disability, as a member of the IEP team, shall participate, to the
extent appropriate, in the development, review, and revision of the child's
IEP, including assisting in the determination of: (34
CFR 300.324(a)(3))
a. Appropriate positive behavioral
interventions and supports and other strategies for the child; and
b. Supplementary aids and services,
accommodations, program modifications or supports for school personnel that
will be provided for the child.
5. Nothing in this section shall be construed
to require: (34 CFR
300.320(d))
a. The IEP team to include information under
one component of a child's IEP that is already contained under another
component of the child's IEP; or
b.
That additional information be included in the child's IEP beyond what is
explicitly required in this chapter.
6. The IEP team shall consider all factors
identified under a free appropriate public education in
8VAC20-81-100,
as appropriate, and work toward consensus. If the IEP team cannot reach
consensus, the local educational agency shall provide the parent with prior
written notice of the local educational agency's proposals or refusals, or
both, regarding the child's educational placement or provision of a free
appropriate public education in accordance with
8VAC20-81-170
C.
G. Content of the
individualized education program. The IEP for each child with a disability
shall include:
1. A statement of the child's
present levels of academic achievement and functional performance, including
how the child's disability affects the child's involvement and progress in the
general curriculum or, for preschool children, as appropriate, how the
disability affects the child's participation in appropriate activities.
(34 CFR
300.320(a)(1))
a. The statement shall be written in
objective measurable terms, to the extent possible. Test scores, if
appropriate, shall be self-explanatory or an explanation shall be
included.
b. The present level of
performance shall directly relate to the other components of the IEP.
2. A statement of measurable
annual goals, including academic and functional goals designed to:
(34 CFR
300.320(a)(2))
a. Meet the child's needs that result from
the child's disability to enable the child to be involved in and progress in
the general curriculum, or for preschool children, as appropriate, to
participate in appropriate activities; and
b. Meet each of the child's other educational
needs that result from the child's disability.
3. If determined appropriate by the IEP team,
as outlined in subdivision F 2 of this section, a description of benchmarks or
short-term objectives. For children with disabilities who take alternate
assessments aligned to alternate achievement standards, the IEP shall include a
description of benchmarks or short-term objectives. (34 CFR
300.320(a)(2))
The IEP team shall document its consideration of the
inclusion in the child's IEP of benchmarks or short-term objectives.
4. A statement of the special
education and related services and supplementary aids and services, based on
peer-reviewed research to the extent practicable, to be provided for the child,
or on behalf of the child, and a statement of the program modifications or
supports for school personnel that will be provided to enable the child:
(34 CFR
300.320(a)(4))
a. To advance appropriately toward attaining
the annual goals;
b. To be involved
and progress in the general curriculum and to participate in extracurricular
and other nonacademic activities; and
c. To be educated and participate with other
children with disabilities and children without disabilities in the activities
described in this section.
5. An explanation of the extent, if any, to
which the child will not participate with children without disabilities in the
regular class and in the activities described in this section. (34 CFR
300.320(a)(5))
6. The following information concerning state
and divisionwide assessments shall be included: (34 CFR
300.320(a)(6))
a. A statement of any individual appropriate
accommodations or modifications that are necessary to measure the child's
academic achievement and functional performance, in accordance with the
guidelines approved by the Board of Education, in the administration of state
assessments of student achievement that are needed in order for the child to
participate in the assessment;
b.
If the IEP team determines that the child must take an alternate assessment
instead of a particular state assessment of student achievement (or part of an
assessment), a statement of:
(1) Why the
child cannot participate in the regular assessment;
(2) Why the particular assessment selected is
appropriate for the child, including that the child meets the criteria for the
alternate assessment; and
(3) How
the child's nonparticipation in the assessment will impact the child's
promotion; graduation with a modified standard, standard, or advanced studies
diploma; or other matters.
c. A statement that the child shall
participate in either a state assessment for all children that is part of the
state assessment program or the state's alternate assessment;
d. A statement of any individual appropriate
accommodations or modifications approved for use in the administration of
divisionwide assessments of student achievement that are needed in order for
the child to participate in the assessment;
e. If the IEP team determines that the child
must take an alternate assessment instead of a particular divisionwide
assessment of student achievement (or part of an assessment), a statement of:
(1) Why the child cannot participate in the
regular assessment;
(2) Why the
particular alternate assessment selected is appropriate for the child;
and
(3) How the child's
nonparticipation in the assessment will impact the child's courses; promotion;
graduation with a modified standard, standard, or advanced studies diploma; or
other matters.
7. The projected dates (month, day, and year)
for the beginning of the services and modifications and the anticipated
frequency, location, and duration of those services and modifications.
(34 CFR
300.320(a)(7))
8. A statement of: (34 CFR
300.320(a)(3))
a. How the child's progress toward the annual
goals will be measured; and
b. When
periodic reports on the progress the child is making toward meeting the annual
goals will be provided; for example, through the use of quarterly or other
periodic reports, concurrent with the issuance of report cards, and at least as
often as parents are informed of the progress of their children without
disabilities.
9. Initial
transition services (34 CFR
300.101(b) and 34 CFR
300.323(b))
a. In the case of a preschool-aged
child with a disability, age two (on or before September 30) through age five
(on or before September 30), whose parent elect to receive services under Part
B of the Act, the local educational agency shall develop an IEP.
b. The IEP team shall consider an IFSP that
contains the IFSP content described under Part C of the Act (§ 1431 et
seq.) including:
(1) A statement regarding
natural environments; and
(2) A
component that promotes school readiness and incorporates pre-literacy,
language, and numeracy skills.
c. These components of the child's IFSP may
be incorporated into the child's IEP.
10. Secondary transition services.
(34 CFR 300.43
and 34 CFR 300.320(b))
a. Prior to the child
entering secondary school but not later than the first IEP to be in effect when
the child turns 14, or younger if determined appropriate by the IEP team, and
updated annually thereafter, the IEP shall include age-appropriate:
(1) Measurable postsecondary goals based upon
age-appropriate transition assessments related to training, education,
employment, and where appropriate, independent living skills; and
(2) Transition services, including courses of
study, needed to assist the child in reaching those goals. Transition services
shall be based on the individual child's needs, taking into account the child's
strengths, preferences, and interests.
b. Beginning not later than the first IEP to
be in effect when the child turns 16, or younger if determined appropriate by
the IEP team, and updated annually, in addition to the requirements of
subdivision 10 a of this subsection, the IEP shall also include a statement, if
appropriate, of interagency responsibilities or any linkages.
c. For a child pursuing a modified standard
diploma, the IEP team shall consider the child's need for occupational
readiness upon school completion, including consideration of courses to prepare
the child as a career and technical education program completer.
11. Beginning at least one year
before a student reaches the age of majority, the student's IEP shall include a
statement that the student and parent have been informed of the rights under
this chapter, if any, that will transfer to the student on reaching the age of
majority. (34 CFR
300.320(c))
H. Agency responsibilities for
secondary transition services. (34 CFR
300.324(c))
1. If a participating agency, other than the
local educational agency, fails to provide the transition services described in
the IEP of a student with a disability, the local educational agency shall
reconvene the IEP team to identify alternative strategies to meet the
transition objectives for the student set out in the IEP.
2. Nothing in this part relieves any
participating agency, including a state vocational rehabilitation agency, of
the responsibility to provide or pay for any transition service that the agency
would otherwise provide to students with disabilities who meet the eligibility
criteria of that agency.
I. Additional requirements for eligible
students with disabilities in state, regional, or local adult or juvenile
correctional facilities. (34 CFR
300.324(d) and 34 CFR
300.102(a)(2); Regulations Establishing Standards for Accrediting Public
Schools in Virginia (8VAC20-131))
1. A
representative of the state from a state, regional, or local adult or juvenile
correctional facility may participate as a member of the IEP team.
2. All requirements regarding IEP
development, review, and revision in this section apply to students with
disabilities in state, regional, or local adult or juvenile correctional
facilities, including assessment requirements to graduate with a modified
standard, standard, or advanced studies diploma. The requirements related to
least restrictive environment in
8VAC20-81-130
do not apply.
3. The following
additional exceptions to subdivision 2 of this subsection apply only to
students with disabilities who are convicted as an adult under state law and
incarcerated in adult prisons:
a. The IEP
team may modify the student's IEP or placement if the state has demonstrated to
the IEP team a bona fide security or compelling penological interest that
cannot be otherwise accommodated.
b. IEP requirements regarding participation
in state assessments, including alternate assessments, do not apply.
c. IEP requirements regarding transition
planning and transition services do not apply to students whose eligibility for
special education and related services will end because of their age before
they will be eligible for release from the correctional facility based on
consideration of their sentence and their eligibility for early
release.
Statutory Authority: §§ 22.1-16 and 22.1-214 of
the Code of Virginia.