Current through Register Vol. 40, No. 16, March 25, 2024
A.
Opportunity to examine records; parent participation. (34 CFR
300.322(e), 34 CFR 300.500
and
34
CFR 300.501; 8VA C20-150)
1. Procedural safeguards. Each local
educational agency shall establish, maintain, and implement procedural
safeguards as follows:
a. The parent of a
child with a disability shall be afforded an opportunity to:
(1) Inspect and review all education records
with respect to (i) the identification, evaluation, and educational placement
of the child; and (ii) the provision of a free appropriate public education to
the child.
(2) Participate in
meetings with respect to the identification, evaluation, and educational
placement of the child and the provision of a free appropriate public education
to the child.
b. Parent
participation in meetings.
(1) Each local
educational agency shall provide notice to ensure that the parent of a child
with a disability has the opportunity to participate in meetings described in
subdivision 1 a (2) of this subsection, including notifying the parent of the
meeting early enough to ensure that the parent has an opportunity to
participate. The notice shall:
(a) Indicate
the purpose, date, time, and location of the meeting and who will be in
attendance;
(b) Inform the parent
that at the parent's discretion or at the discretion of the local educational
agency, other individuals who have knowledge or special expertise regarding the
child, including related services personnel, as appropriate, may participate in
meetings with respect to the identification, evaluation, and educational
placement of the child and the provision of a free appropriate public education
to the child;
(c) Inform the parent
that the determination of the knowledge or special expertise shall be made by
the party who invited the individual; and
(d) Inform the parent, in the case of a child
who was previously served under Part C that an invitation to the initial IEP
team meeting shall, at the request of the parent, be sent to the Part C service
coordinator or other representatives of Part C to assist with the smooth
transition of services.
(2) A meeting does not include informal or
unscheduled conversations involving local educational agency personnel and
conversations on issues such as teaching methodology, lesson plans, or
coordination of service provision if those issues are not addressed in the
child's IEP. A meeting also does not include preparatory activities that local
educational agency personnel engage in to develop a proposal or a response to a
parent proposal that will be discussed at a later meeting.
c. Parent involvement in placement decisions.
(1) Each local educational agency shall
ensure that a parent of each child with a disability is a member of the IEP
team that makes decisions on the educational placement of their child or any
Comprehensive Services Act team that makes decisions on the educational
placement of their child.
(2) In
implementing the requirements of subdivision 1 c (1) of this subsection, the
local educational agency shall provide notice in accordance with the
requirements of
8VAC20-81-110
E.
(3) If neither parent can
participate in a meeting in which a decision is to be made relating to the
educational placement of their child, the local educational agency shall use
other methods to ensure their participation, including individual or conference
telephone calls, or video conferencing.
(4) A placement decision may be made by the
IEP or Comprehensive Services Act team without the involvement of the parent if
the local educational agency is unable to obtain the parents' participation in
the decision. In this case, the local educational agency shall have a record of
its attempt to ensure the parents' involvement.
(5) The local educational agency shall take
whatever action is necessary to ensure that the parent understands and is able
to participate in, any group discussions relating to the educational placement
of the parent's child, including arranging for an interpreter for a parent with
deafness, or whose native language is other than English.
(6) The exception to the IEP team
determination regarding placement is with disciplinary actions involving
interim alternative education settings for 45-day removals under
8VAC20-81-160
D 6 a. (34 CFR 300.530(f)(2)
and (g))
B. Independent educational
evaluation.
1. General. (34 CFR
300.502(a))
a. The parent of a child with a disability
shall have the right to obtain an independent educational evaluation of the
child.
b. The local educational
agency shall provide to the parent of a child with a disability, upon request
for an independent educational evaluation, information about where an
independent educational evaluation may be obtained and the applicable criteria
for independent educational evaluations.
2. Parental right to evaluation at public
expense. (34 CFR
300.502(b) and (e))
a. The parent has the right to an independent
educational evaluation at public expense if the parent disagrees with an
evaluation obtained by the local educational agency.
b. If the parent requests an independent
educational evaluation at public expense, the local educational agency shall,
without unnecessary delay, either:
(1)
Initiate a due process hearing to show that its evaluation is appropriate;
or
(2) Ensure that an independent
educational evaluation is provided at public expense, unless the local
educational agency demonstrates in a due process hearing that the evaluation
obtained by the parent does not meet the local educational agency's
criteria.
c. If the
local educational agency initiates a due process hearing and the final decision
is that the local educational agency's evaluation is appropriate, the parent
still has the right to an independent educational evaluation, but not at public
expense.
d. If the parent requests
an independent educational evaluation, the local educational agency may ask the
reasons for the parent's objection to the public evaluation. However, the
explanation by the parent may not be required and the local educational agency
may not unreasonably delay either providing the independent educational
evaluation at public expense or initiating a due process hearing to defend the
public evaluation.
e. A parent is
entitled to only one independent educational evaluation at public expense each
time the public educational agency conducts an evaluation with which the parent
disagrees.
f. If an independent
educational evaluation is at public expense, the criteria under which the
evaluation is obtained, including the location of the evaluation and the
qualifications of the examiner, shall be the same as the criteria that the
local educational agency uses when it initiates an evaluation, to the extent
those criteria are consistent with the parent's right to an independent
educational evaluation. Except for the criteria, a local educational agency may
not impose conditions or timelines related to obtaining an independent
educational evaluation at public expense.
3. Parent-initiated evaluations. If the
parent obtains an independent educational evaluation at public expense or
shares with the local educational agency an evaluation obtained at private
expense, the results of the evaluation: (34 CFR
300.502(c))
a. Shall be considered by the local
educational agency, if it meets local educational agency criteria, in any
decision regarding the provision of a free appropriate public education to the
child; and
b. May be presented by
any party as evidence at a hearing under
8VAC20-81-210.
4. Requests for evaluations by
special education hearing officers. If a special education hearing officer
requests an independent educational evaluation as part of a hearing on a due
process complaint, the cost of the evaluation shall be at public expense.
(34 CFR
300.502(d))
C. Prior written notice by the
local educational agency; content of notice.
1. Prior written notice shall be given to the
parent of a child with a disability within a reasonable time before the local
educational agency: (34 CFR
300.503(a))
a. Proposes to initiate or change the
identification, evaluation, or educational placement (including graduation with
a standard or advanced studies diploma) of the child, or the provision of a
free appropriate public education for the child; or
b. Refuses to initiate or change the
identification, evaluation, or educational placement of the child, or the
provision of a free appropriate public education for the child.
2. The notice shall include:
(34 CFR
300.503(b))
a. A description of the action proposed or
refused by the local educational agency;
b. An explanation of why the local
educational agency proposes or refuses to take the action;
c. A description of any other options the IEP
team considered and the reasons for the rejection of those options;
d. A description of each evaluation
procedure, assessment, record, or report the local educational agency used as a
basis for the proposed or refused action;
e. A description of any other factors that
are relevant to the local educational agency's proposal or refusal;
f. A statement that the parent of a child
with a disability have protection under the procedural safeguards of this
chapter and, if the notice is not an initial referral for evaluation, the means
by which a copy of a description of the procedural safeguards can be obtained;
and
g. Sources for the parent to
contact in order to obtain assistance in understanding the provisions of this
section.
3.
a. The notice shall be (i) written in
language understandable to the general public; and (ii) 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. (34 CFR
300.503(c))
b. If the native language or other mode of
communication of the parent is not a written language, the local educational
agency shall take steps to ensure that:
(1)
The notice is translated orally or by other means to the parent in the parent's
native language or other mode of communication;
(2) The parent understands the content of the
notice; and
(3) There is written
evidence that the requirements of subdivisions (1) and (2) of this subdivision
have been met.
D. Procedural safeguards notice.
(34 CFR
300.504)
1.
A copy of the procedural safeguards available to the parent of a child with a
disability shall be given to the parent by the local educational agency only
one time a school year, except that a copy shall be given to the parent upon:
a. Initial referral for or parent request for
evaluation;
b. If the parent
requests an additional copy;
c.
Receipt of the first state complaint during a school year;
d. Receipt of the first request for a due
process hearing during a school year; and
e. On the date on which the decision is made
to make a disciplinary removal that constitutes a change in placement because
of a violation of a code of student conduct.
2. The local educational agency may place a
current copy of the procedural safeguards notice on its Internet website if a
website exists, but the local educational agency does not meet its obligation
under subdivision 1 of this subsection by directing the parent to the website.
The local educational agency shall offer the parent a printed copy of the
procedural safeguards notice in accordance with subdivision 1 of this
subsection.
3. The procedural
safeguards notice shall include a full explanation of all of the procedural
safeguards available relating to:
a.
Independent educational evaluation;
b. Prior written notice;
c. Parental consent;
d. Access to educational records;
e. Opportunity to present and resolve
complaints through the due process complaint and state complaint procedures,
including:
(1) The time period in which to
file a complaint;
(2) The
opportunity for the local educational agency to resolve the complaint;
and
(3) The difference between the
due process and the state complaint procedures, including the applicable
jurisdiction of each procedure, potential issues, filing and decisional
timelines for each process, and relevant procedures;
f. The availability of mediation;
g. The child's placement during pendency of
due process proceedings;
h.
Procedures for students who are subject to placement in an interim alternative
educational setting;
i.
Requirements for unilateral placement by parents of children in private schools
at public expense;
j. Due process
hearings, including requirements for disclosure of evaluation results and
recommendations;
k. Civil actions,
including the time period in which to file those actions;
l. Attorneys' fees.
4. The notice required under this subsection
shall meet the prior notice requirements regarding understandable language in
subdivision C 3 of this section.
E. Parental consent.
1. Required parental consent. Informed
parental consent is required before:
a.
Conducting an initial evaluation or reevaluation, including a functional
behavioral assessment if such assessment is not a review of existing data
conducted at an IEP meeting; (34 CFR
300.300(a)(1)(i))
b. An initial eligibility determination or
any change in categorical identification;
c. Initial provision of special education and
related services to a child with a disability; (34 CFR
300.300(b)(1))
d. Any revision to the child's IEP
services;
e. Any partial or
complete termination of special education and related services, except for
graduation with a standard or advance studies diploma;
f. The provision of a free appropriate public
education to children with disabilities who transfer between public agencies in
Virginia or transfer to Virginia from another state in accordance with
8VAC20-81-120;
g. Accessing a child's public benefits or
insurance or private insurance proceeds in accordance with subsection F of this
section; and (34 CFR
300.154)
h. Inviting to an IEP meeting a
representative of any participating agency that is likely to be responsible for
providing or paying for secondary transition services. (34 CFR
300.321(b)(3))
2. Parental consent not required.
Parental consent is not required before:
a.
Review of existing data as part of an evaluation or a reevaluation, including a
functional behavioral assessment; (34 CFR
300.300(d)(1))
b. Administration of a test or other
evaluation that is administered to all children unless, before administration
of that test or evaluation, consent is required of the parents of all children;
(34 CFR
300.300(d)(1))
c. The screening of a student by a teacher or
specialist to determine appropriate instructional strategies for curriculum
implementation; (34 CFR
300.302)
d. Administration of a test or other
evaluation that is used to measure progress on the child's IEP goals and is
included in the child's IEP;
e. A
teacher's or related service provider's observations or ongoing classroom
evaluations;
f. Conducting an
initial evaluation of a child who is a ward of the state and who is not
residing with his parent if: (34 CFR
300.300(a)(2))
(1) Despite reasonable efforts, the local
educational agency cannot discover the whereabouts of the parent;
(2) The parent's rights have been terminated;
or
(3) The rights of the parent to
make educational decisions have been subrogated by a judge and an individual
appointed by the judge to represent the child has consented to the initial
evaluation.
3. Revoking consent.
a. If at any time subsequent to the initial
provision of special education and related services the parent revokes consent
in writing for the continued provision of special education and related
services: (34 CFR
300.300(b)(4))
(1) The local educational agency may not
continue to provide special education and related services to the child, but
must provide prior written notice in accordance with 8VAC20-81-170 C before
ceasing the provision of special education and related services;
(2) The local educational agency may not use
mediation or due process hearing procedures to obtain parental consent, or a
ruling that the services may be provided to the child;
(3) The local educational agency's failure to
provide the special education and related services to the child will not be
considered a violation of the requirement to provide FAPE; and
(4) The local educational agency is not
required to convene an IEP meeting or to develop an IEP for the child for the
further provision of special education and related services.
b. If a parent revokes consent,
that revocation is not retroactive in accordance with the definition of
"consent" at
8VAC20-81-10.
4. Refusing consent.
a. If the parent refuses consent for initial
evaluation or a reevaluation, the local educational agency may, but is not
required to, use mediation or due process hearing procedures to pursue the
evaluation. The local educational agency does not violate its obligations under
this chapter if it declines to pursue the evaluation. (34 CFR
300.300(a)(3) and (c)(1))
b. If the parent refuses to
consent to the initial provision of special education and related services:
(34 CFR
300.300(b)(3))
(1) The local educational agency may not use
mediation or due process hearing procedures to obtain parental consent, or a
ruling that the services may be provided to the child;
(2) The local educational agency's failure to
provide the special education and related services to the child for which
consent is requested is not considered a violation of the requirement to
provide FAPE; and
(3) The local
educational agency is not required to convene an IEP meeting or to develop an
IEP for the child for the special education and related services for which the
local educational agency requests consent. However, the local educational
agency may convene an IEP meeting and develop an IEP to inform the parent about
the services that may be provided with parental consent.
c. If the parent of a parentally placed
private school child refuses consent for an initial evaluation or a
reevaluation, the local educational agency: (34 CFR
300.300(d)(4))
(1) May not use mediation or due process
hearing procedures to obtain parental consent, or a ruling that the evaluation
of the child may be completed; and
(2) Is not required to consider the child as
eligible for equitable provision of services in accordance with
8VAC20-81-150.
d. A local educational agency may
not use a parent's refusal to consent to one service or activity to deny the
parent or child any other service, benefit, or activity of the local
educational agency, except as provided by this chapter. (34 CFR
300.300(d)(3))
5. Withholding consent.
a. If the parent fails to respond to a
request to consent for an initial evaluation, the local educational agency may,
but is not required to, use mediation or due process hearing procedures to
pursue the evaluation. The local educational agency does not violate its
obligations under this chapter if it declines to pursue the evaluation.
(34 CFR 300.300(a)(3) and
(c)(1))
b. Informed parental consent need not be
obtained for reevaluation if the local educational agency can demonstrate that
it has taken reasonable measures to obtain that consent, and the child's parent
has failed to respond. (34 CFR
300.300(c)(2))
c. If the parent fails to respond to a
request to provide consent for the initial provision of special education and
related services, the local educational agency follows the provisions of
subdivision 4 b of this subsection. (34 CFR 300.300(b)(3)
and (4))
6. Consent for initial evaluation may not be
construed as consent for initial provision of special education and related
services. (34 CFR
300.300(a)(1)(ii))
7. The local educational agency
shall make reasonable efforts to obtain informed parental consent for an
initial evaluation and the initial provision of special education and related
services. (34 CFR 300.300(a)(1)(iii) and
(b)(2))
8. To meet the reasonable measures
requirement of this section, the local educational agency shall have a record
of its attempts to secure the consent, such as: (34 CFR
300.322(d) and 34 CFR
300.300(a), (b), (c) and (d)(5))
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; and
c. Detailed records
of visits made to the parent's home or place of employment and the results of
those visits.
F. Parental rights regarding use of public or
private insurance. Each local educational agency using Medicaid or other public
benefits or insurance programs to pay for services required under this chapter,
as permitted under the public insurance program, and each local educational
agency using private insurance to pay for services required under this chapter,
shall provide notice to the parent and obtain informed parental consent in
accordance with
8VAC20-81-300.
(34 CFR
300.154)
G. Confidentiality of information.
1. Access rights. (34 CFR
300.613)
a.
The local educational agency shall permit the parent to inspect and review any
education records relating to the parent's children that are collected,
maintained, or used by the local educational agency under this chapter. The
local educational agency shall comply with a request without unnecessary delay
and before any meeting regarding an IEP or any hearing in accordance with
8VAC20-81-160
and
8VAC20-81-210,
or resolution session in accordance with
8VAC20-81-210,
and in no case more than 45 calendar days after the request has been
made.
b. The right to inspect and
review education records under this section includes:
(1) The right to a response from the local
educational agency to reasonable requests for explanations and interpretations
of the records;
(2) The right to
request that the local educational agency provide copies of the records
containing the information if failure to provide those copies would effectively
prevent the parent from exercising the right to inspect and review the records;
and
(3) The right to have a
representative of the parent inspect and review the records.
c. A local educational agency may
presume that a parent has authority to inspect and review records relating to
the parent's children unless the local educational agency has been provided a
copy of a judicial order or decree, or other legally binding documentation,
that the parent does not have the authority under applicable Virginia law
governing such matters as guardianship, separation, and divorce.
2. Record of access. Each local
educational agency shall keep a record of parties, except parents and
authorized employees of the local educational agency, obtaining access to
education records collected, maintained, or used under Part B of the Act,
including the name of the party, the date of access, and the purpose for which
the party is authorized to use the records. (34 CFR
300.614)
3. Record on more than one child. If any
education record includes information on more than one child, the parents of
those children have the right to inspect and review only the information
relating to their child or to be informed of the specific information
requested. (34 CFR
300.615)
4. List of types and locations of
information. Each local educational agency shall provide a parent on request a
list of the types and locations of education records collected, maintained, or
used by the local educational agency. (34 CFR
300.616)
5. Fees. (34 CFR
300.617)
a.
Each local educational agency may charge a fee for copies of records that are
made for a parent under this chapter if the fee does not effectively prevent
the parent from exercising their right to inspect and review those
records.
b. A local educational
agency may not charge a fee to search for or to retrieve information under this
section.
c. A local educational
agency may not charge a fee for copying a child's IEP that is required to be
provided to the parent in accordance with
8VAC20-81-110
E 7.
6. Amendment of
records at parent's request. (34 CFR
300.618)
a.
A parent who believes that information in the education records collected,
maintained, or used under this chapter is inaccurate or misleading or violates
the privacy or other rights of the child may request the local educational
agency that maintains the information to amend the information.
b. The local educational agency shall decide
whether to amend the information in accordance with the request within a
reasonable period of time of receipt of the request.
c. If the local educational agency decides to
refuse to amend the information in accordance with the request, it shall inform
the parent of the refusal and advise the parent of the right to a hearing under
subdivision 7 of this subsection.
7. Opportunity for a hearing. The local
educational agency shall provide on request an opportunity for a hearing to
challenge information in education records to ensure that it is not inaccurate,
misleading, or otherwise in violation of the privacy or other rights of the
child. (34 CFR
300.619)
8. Results of hearing. (34 CFR
300.620)
a.
If, as a result of the hearing, the local educational agency decides that the
information is inaccurate, misleading, or otherwise in violation of the privacy
or other rights of the child, it shall amend the information accordingly and so
inform the parent in writing.
b.
If, as a result of the hearing, the local educational agency decides that the
information is not inaccurate, misleading, or otherwise in violation of the
privacy or other rights of the child, it shall inform the parent of the right
to place in the child's education records a statement commenting on the
information or setting forth any reasons for disagreeing with the decision of
the agency.
c. Any explanation
placed in the records of the child under this section shall:
(1) Be maintained by the local educational
agency as part of the records of the child as long as the record or contested
portion is maintained by the local educational agency; and
(2) If the records of the child or the
contested portion is disclosed by the local educational agency to any party,
the explanation shall also be disclosed to the party.
9. Hearing procedures. A hearing
held under subdivision 7 of this subsection shall be conducted in accordance
with the procedures under
34
CFR 99.22 of the Family Educational Rights
and Privacy Act. (20 USC §
1232g; 34 CFR 300.621)
a. The local educational agency may:
(1) Develop local procedures for such a
hearing process; or
(2) Obtain a
hearing officer from the Supreme Court of Virginia's special education hearing
officer list in accordance with the provisions of
8VAC20-81-210
H.
10.
Consent. (34 CFR
300.32; 34 CFR 300.622)
a. Parental consent shall be obtained before
personally identifiable information is disclosed to anyone other than officials
of the local educational agency unless the information is contained in the
education records, and the disclosure is authorized without parental consent
under the Family Education Rights and Privacy Act. (20
USC §
1232g) .
b. Parental consent is not required before
personally identifiable information is disclosed to officials of the local
educational agencies collecting, maintaining, or using personally identifiable
information under this chapter, except:
(1)
Parental consent, or the consent of a child who has reached the age of
majority, shall be obtained before personally identifiable information is
released to officials of any agency or institution providing or paying for
transition services.
(2) If a child
is enrolled, or is going to enroll in a private school that is not located in
the local educational agency where the parent resides, parental consent shall
be obtained before any personally identifiable information about the child is
released between officials in the local educational agency where the private
school is located, and officials in the local educational agency where the
parent resides.
11. Safeguards. (34 CFR
300.623)
a.
Each local educational agency shall protect the confidentiality of personally
identifiable information at collection, storage, disclosure, and destruction
stages.
b. Each local educational
agency shall ensure that electronic communications via emails or facsimiles
regarding any matter associated with the child, including matters related to
IEP meetings, disciplinary actions, or service delivery, be part of the child's
educational record.
c. One official
at each local educational agency shall assume responsibility for ensuring the
confidentiality of any personally identifiable information.
d. All persons collecting, maintaining, or
using personally identifiable information shall receive training or instruction
on Virginia's policies and procedures for ensuring confidentiality of the
information.
e. Each local
educational agency shall maintain for public inspection a current listing of
the names and positions of those employees within the agency who may have
access to personally identifiable information.
12. Destruction of information.
(34 CFR
300.624)
a.
The local educational agency shall inform parents when personally identifiable
information collected, maintained, or used under this chapter is no longer
needed to provide educational services to the child.
b. This information shall be destroyed at the
request of the parents. However, a permanent record of a student's name,
address, phone number, grades, attendance record, classes attended, grade level
completed, and year completed shall be maintained without time
limitation.
c. The local
educational agency shall comply with the Records Retention and Disposition
Schedule of the Library of Virginia.
H. Electronic mail. If the local educational
agency makes the option available, the parent of a child with a disability may
elect to receive prior written notice, the procedural safeguards notice, and
the notice of a request for due process, by electronic mail. (34 CFR
300.505)
I. Electronic signature. If an electronically
filed document contains an electronic signature, the electronic signature has
the legal effect and enforceability of an original signature. An electronic
signature is an electronic sound, symbol, or process attached to or logically
associated with a record and executed or adopted by a person with the intent to
sign the record. (Chapter 42.1 (§ 59.1-479 et seq.) of Title 59.1 of the
Code of Virginia)
J. Audio and
video recording.
1. The local educational
agency shall permit the use of audio recording devices at meetings convened to
determine a child's eligibility under
8VAC20-81-80; to
develop, review, or revise the child's IEP under
8VAC20-81-110
F; and to review discipline matters under
8VAC20-81-160
D. The parent shall inform the local educational agency before the meeting in
writing, unless the parents cannot write in English, that they will be audio
recording the meeting. If the parent does not inform the local educational
agency, the parent shall provide the local educational agency with a copy of
the audio recording. The parent shall provide their own audio equipment and
materials for audio recording. If the local educational agency audio records
meetings or receives a copy of an audio recording from the parent, the audio
recording becomes a part of the child's educational record.
2. The local educational agency may have
policies that prohibit, limit, or otherwise regulate the use of:
a. Video recording devices at meetings
convened pursuant to this chapter; or
b. Audio or video recording devices at
meetings other than those meetings identified in subdivision 1 of this
subsection.
3. These
policies shall:
a. Stipulate that the
recordings become part of the child's educational record;
b. Ensure that the policy is uniformly
applied; and
c. If the policy
prohibits the use of the devices, the policy shall provide for exceptions if
they are necessary to ensure that the parent understands the IEP, the special
education process, or to implement other parental rights guaranteed under this
chapter.
Statutory Authority: §§ 22.1-16 and 22.1-214 of
the Code of Virginia.