Current through Register Vol. 40, No. 16, March 25, 2024
A. The requirements
set forth in this chapter are applicable to local school divisions and
state-operated programs providing education and related services for children
with disabilities and are developed in accordance with state and federal laws
and regulations.
B. Each local
school division shall ensure that all children with disabilities aged two to
21, inclusive, residing in that school division have a right to a free
appropriate public education. (§ 22.1-214 of the Code of Virginia;
34 CFR
300.2,
34 CFR
300.101,
34 CFR
300.124 and 34 CFR 300.209)
The children include:
1. Children with disabilities who are
migrant;
2. Children with
disabilities who are homeless, in accordance with the provisions of the
McKinney-Vento Homeless Assistance Act ( 42 USC § 11431 et
seq.);
3. Children with
disabilities who are in need of special education and related services, even
though the child has not failed or been retained in a course or grade, and is
advancing from grade to grade;
4.
Children with disabilities who are served in a public nonprofit charter
school;
5. Children with
disabilities who have been suspended or expelled from school;
6. Children with disabilities who are
incarcerated for 10 or more days in a regional or local jail in its
jurisdiction, with the exception of those additional provisions identified in
8VAC20-81-110 I;
7. Children with disabilities who are
residents of the school division and who are on house arrest, as ordered by a
court of competent jurisdiction;
8.
Children with disabilities who are in foster care and residents of
Virginia;
9. Children with
disabilities who are placed for noneducational reasons;
10. Children with disabilities regardless of
citizenship or immigration status; and
11. Children with disabilities who do not
reside within its jurisdiction but reside in the Commonwealth and are enrolled
in a full-time virtual school program provided by the school division, in
accordance with regulations of the Board of Education. A school division that
is required to provide a free appropriate public education, including special
education, for a nonresident student who is enrolled in its full-time virtual
school program pursuant to this section shall be entitled to any federal and
state funds applicable to the education of such student. In the case of a
student who is a resident of the Commonwealth but does not reside in the school
division in which he is enrolled in a full-time virtual school program, the
school division in which the student resides shall be released from the
obligation to provide a free appropriate public education, including special
education, for such student.
C. Every child with a disability is deemed to
reside in a school division when (§ 22.1-3 of the Code of Virginia):
1. The child is living with a biological
parent whose parental rights have not been terminated.
2. The child is living with an adoptive
parent.
3. The child is living with
an individual:
a. Other than the custodial
parent but who is defined as a parent in § 22.1-1 of the Code of Virginia,
not solely for school purposes; and
b. Pursuant to a special power of attorney
executed under 10 USC § 1044 b by the custodial parent while such
custodial parent is deployed outside the United States as a member of the
Virginia National Guard or as a member of the United States Armed
Forces.
4. The parent(s)
of the child is deceased and the child is living with a person in loco parentis
who resides within the school division.
5. The parents of the child are unable to
care for him and he is living, not solely for school purposes, with another
person who resides in the school division and is either:
a. The court-appointed guardian, or has legal
custody; or
b. Acting in loco
parentis pursuant to placement of the child by a person or entity authorized to
do so under § 63.2-900 of the Code of Virginia.
6. The child is living in the school division
not solely for school purposes, as an emancipated minor pursuant to the
provisions of the § 16.1-334 of the Code of Virginia.
7. The child is living in the school division
not solely for school purposes, as a validly married minor who has not pursued
emancipation under § 16.1-333 of the Code of Virginia but who asserts
implied emancipation based on the minor's marriage record.
8. The child is in foster care and a resident
of Virginia, but not a resident of the school division, under the following
conditions: (§ 22.1-215 of the Code of Virginia)
a. The child has been placed in foster care
or other custodial care within the geographical boundaries of the school
division, placed by a Virginia agency, whether state or local, that is
authorized by the Code of Virginia to place children; or
b. The child has been placed, not solely for
school purposes, in a child-caring institution or group home licensed under the
provisions of Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 of the Code
of Virginia that is located within the geographical boundaries of the school
division.
9. The child
is in foster care and a resident of Virginia, and a resident of the school
division, under the provisions of subdivision 8 of this subsection.
D. If a child with a disability is
living with the parent in the residence of the local school division, the local
school division is responsible for ensuring that the child receives a free
appropriate public education even if the enrollment requirements for the child
are not completed within a reasonable period of the parents' request to enroll
the child. ( 34 CFR
300.101 )
E. Requirements for children with
disabilities who are placed for noneducational reasons:
1. The local school division that is part of
the Comprehensive Services Act team that places the child in a private
residential placement for noneducational reasons shall ensure that the child's
IEP team develops an IEP appropriate for the child's needs while the child is
in the residential placement.
2. If
a child in foster care is placed in a local school division of nonresidence and
the IEP team of the local school division of nonresidence where the child is
placed determines that the child needs to be placed in a private day or
residential special education facility for educational reasons, the
responsibility for a free appropriate public education transfers to the local
school division where the Virginia placing agency is located and is a
participant in the community policy and management team of that local school
division that has responsibility for the child under the Comprehensive Services
Act (Chapter 52 (§ 2.2-5200 et seq.) of Title 2.2 of the Code of
Virginia).
3. If placed in a
nursing facility, a long stay hospital, or an intermediate care facility for
people with intellectual disabilities under funding from the Virginia
Department of Medical Assistance Services, the child is a resident of the
division where the parent(s) resides.
4. If placed in a group home by a community
services board, a court service unit, or a court of competent jurisdiction, the
child is a resident of the division where the parent(s) resides.
5. If the child is aged 18 or older and
placed in a nursing facility, a long stay hospital, or an intermediate care
facility for people with intellectual disabilities under funding from the
Virginia Department of Medical Assistance Services, and who has been declared
legally incompetent or legally incapacitated by a court of competent
jurisdiction and for whom the court has appointed a guardian to make decisions,
the adult child is a resident of the division where the guardian
resides.
6. If the child is aged 18
or older and placed in a group home by a community services board and has been
declared legally incompetent or legally incapacitated by a court of competent
jurisdiction and for whom the court has appointed a guardian to make decisions,
the adult child is a resident of the division where the guardian
resides.
7. If the child is aged 18
or older, who has not been declared legally incompetent or legally
incapacitated by a court of competent jurisdiction and for whom the court has
not appointed a guardian to make decisions, the adult child's residence is the
fixed home to which the adult child will return following the child's return
from a facility and at which the adult child intends to stay. No adult child
shall have more than one residence at a time.
8. If the child is aged 18 or older, who has
been declared legally incompetent or legally incapacitated by a court of
competent jurisdiction and for whom the court has appointed a guardian to make
decisions, the adult child is a resident of the division where the guardian
resides.
9. If placed in a
sponsored residential home, licensed in accordance with 12VAC35-105, the child
is a resident of the division where the parent(s) resides.
F. If there is a dispute between local school
divisions regarding the parent's or legal guardian's residence, the local
school division of the parent's or legal guardian's last known place of
residence is responsible until such dispute is resolved or the parent's or
legal guardian's residence is established in another local school
division.
G. If there is dispute
between the parent or legal guardian of a child with a disability and the local
school division regarding residency, the local school division of where the
child is last enrolled remains responsible for providing the child with a free
appropriate public education until resolution of the dispute.
H. Each state-operated program shall ensure
that the requirements in this chapter are applied to children with
disabilities, aged two to 21, inclusive, in that institution. (§ 22.1-7 of
the Code of Virginia)
1. For children with
disabilities who are placed in a state-operated program as a long-term
placement, the local educational agency of the parent's residence remains
responsible for ensuring that the child receives a free appropriate public
education.
2. The state-operated
program shall ensure that the local educational agency of the parent's
residence is advised of the child's admission, status, and meetings associated
with the child receiving a free appropriate public education.
I. Children with disabilities who
are not residents of Virginia but are living temporarily with adults who do not
otherwise meet the definition of parent(s) residing within a school division
may, in the discretion of the local school board's policies and procedures, be
admitted to the public schools of the school division for special education and
related services. Tuition charges associated with this admittance are subject
to the provisions of § 22.1-5 of the Code of Virginia.
Statutory Authority: §§ 22.1-16 and 22.1-214 of
the Code of Virginia; 34 CFR Part 300.
