Current through Register Vol. 40, No. 16, March 25, 2024
A. Each local
educational agency shall establish procedures to ensure that the decision
regarding eligibility for special education and related services and
educational needs is made in accordance with the provisions of this
section.
B. The determination that
a child is eligible for special education and related services shall be made on
an individual basis by a group as designated in subdivision C 2 of this
section.
C. Upon completion of the
administration of assessments and other evaluation materials or after
determining that additional data are not needed, a group of qualified
professionals and the parent(s) of the child shall determine whether the child
is, or continues to be, a child with a disability and the educational needs of
the child. If a determination is made that a child has a disability and
requires special education and related services, an IEP shall be developed in
accordance with the requirements of
8VAC20-81-110. (
34 CFR
300.306,
34 CFR
300.308 )
1.
The determination of whether a child is a child with a disability is made by
the child's parent(s) and a group that is collectively qualified to:
a. Conduct, as appropriate, individual
diagnostic assessments in the areas of speech and language, academic
achievement, intellectual development and social-emotional
development;
b. Interpret
assessment and intervention data, and apply critical analysis to those data;
and
c. Develop appropriate
educational and transitional recommendations based on the assessment
data.
2. The eligibility
group composition.
a. The group may be an IEP
team, as defined in
8VAC20-81-110, as long as the above
requirements and notice requirements of
8VAC20-81-170 are met.
b. The group shall include, but not be
limited to:
(1) Local educational agency
personnel representing the disciplines providing assessments;
(2) The special education administrator or
designee;
(3) The
parent(s);
(4) A special education
teacher;
(5) The child's general
education teacher or if the child does not have a general education teacher, a
general education teacher qualified to teach a child of the child's age; or for
a child of less than school age, an individual qualified to teach a child of
the child's age; and
(6) At least
one person qualified to conduct individual diagnostic examinations of children,
such as school psychologist, speech-language pathologist, or remedial reading
teacher.
D. Procedures for determining eligibility and
educational need. ( 34 CFR
300.306 through
34 CFR
300.311 )
1.
In interpreting evaluation data for the purpose of determining if a child is a
child with a disability and determining the educational needs of the child, the
local educational agency shall:
a. Draw upon
information from a variety of sources, including aptitude and achievement
tests, parent input and teacher recommendations, as well as information about
the child's physical condition, social or cultural background, and adaptive
behavior; and
b. Ensure that
information from all these sources is documented and carefully
considered.
2. The group
shall provide procedural safeguards in determining eligibility and in ensuring
the confidentiality of records.
3.
Observation.
a. The local educational agency
shall ensure that the child is observed in the child's learning environment
(including the general education classroom setting) to document the child's
academic performance and behavior in the areas of difficulty.
b. The eligibility group, in determining
whether a child is a child with a disability shall:
(1) Use information from an observation in
routine classroom instruction and monitoring of the child's performance that
was done before the child was referred for an evaluation; or
(2) Have at least one member of the
eligibility group conduct an observation of the child's academic performance in
the general education classroom after the child has been referred for an
evaluation and parental consent has been obtained consistent with the
requirements of
8VAC20-81-170.
c. In the case of a child of less than school
age or out of school, a group member shall observe the child in an environment
appropriate for a child of that age.
4. A child shall not be determined to be
eligible under this chapter if the child does not otherwise meet the
eligibility criteria, or the determinant factor is:
a. Lack of appropriate instruction in
reading, including the essential components of reading instruction:
(1) Phonemic awareness,
(2) Phonics,
(3) Vocabulary development,
(4) Reading fluency, including oral reading
skills, and
(5) Reading
comprehension strategies;
b. Lack of appropriate instruction in math;
or
c. Limited English
proficiency.
5. The
local educational agency shall provide the parent with a copy of the
documentation of the determination of eligibility at no cost. This
documentation shall include a statement of:
a. Whether the child has a specific
disability.
b. The basis for making
the determination including an assurance that the determination has been made
in accordance with the provisions of this section regarding determining
eligibility and educational need.
c. The relevant behavior, if any, noted
during the observation of the child and the relationship of that behavior to
the child's academic functioning.
d. The educationally relevant medical
findings, if any.
e. The
instructional strategies used and the student-centered data collected if the
child has participated in a response to scientific, research-based intervention
process. This document shall also include:
(1)
The local educational agency's notification to the parent of the Virginia
Department of Education's policies regarding the amount and nature of student
performance data that would be collected and the general education services
that would be provided;
(2) The
strategies that were used to increase the child's rate of learning;
and
(3) The parent's right to
request an evaluation.
f. For identification of a child with a
specific learning disability, whether consistent with the requirements of
subdivisions T 2 a and T 2 b of this section, the child does not achieve
adequately for the child's age or to meet Virginia-approved grade-level
standards; and
(1) The child does not make
sufficient progress to meet age or Virginia-approved grade-level standards;
or
(2) The child exhibits a pattern
of strengths and weaknesses in performance, achievement, or both, relative to
age, Virginia-approved grade-level standards or intellectual
development.
g. For
identification of a child with a specific learning disability, the group's
determination is consistent with the requirements of subdivision T 2 c of this
section.
6. The
eligibility group shall consider, as part of the evaluation, data that
demonstrates that prior to, or as part of the referral process, the child was
provided appropriate high-quality, researched-based instruction in general
education settings, consistent with § 1111(b)(8)(D) and (E) of the ESEA,
including that the instruction was delivered by qualified personnel. There
shall be data-based documentation that repeated assessments of achievement at
reasonable intervals, reflecting that formal assessment of student progress
during instruction was provided to the child's parents.
7. The eligibility group shall work toward
consensus. If the group does not reach consensus and the decision does not
reflect a particular member's conclusion, then the group member shall submit a
written statement presenting that member's conclusions.
8. The local educational agency shall obtain
written parental consent for the initial eligibility determination. Thereafter,
written parental consent shall be secured for any change in categorical
identification in the child's disability.
9. The eligibility group shall have a written
summary that consists of the basis for making its determination as to the
eligibility of the child for special education and related services. The
written summary shall include any written statement from a member whose
conclusion differs from the other members' determination. The summary statement
may include other recommendations. The written summary shall be maintained in
the child's scholastic record.
10.
The written summary shall be forwarded to the IEP team, including the parent,
upon determination of eligibility. The summary statement may include other
recommendations.
11. With
reevaluations, if the eligibility group determines that there is not a change
to the child's eligibility for special education and related services, and
educational needs, the IEP team is not required to convene, unless the parent
requests that the IEP team meets.
E. Nothing in this chapter requires that
children be identified by their disability on IEPs, local educational agency
communications to parents regarding eligibility determinations, or other
similar communications to parents. For such communications, local educational
agencies shall identify that each child has a disability under this chapter and
by reason of that disability needs special education and related services, and
is regarded as a child with a disability.
F. Eligibility for related services. A child
with a disability shall be found eligible for special education in order to
receive related services. Once a child is found eligible for special education,
decisions about the need for related services shall be made by the IEP team. An
evaluation may be conducted as determined by the IEP team. (
34 CFR
300.34 and
34 CFR
300.306(c)(2) )
G. Two-year-old children previously served by
Part C. A child, aged two, previously participating in early intervention
services assisted under Part C of the Act, shall meet the requirements of this
chapter to be determined eligible under Part B of the Act. For a child served
by Part C after age two, and whose third birthday occurs during the summer, the
child's IEP team shall determine the date when services under the IEP will
begin for the child. ( 34
CFR 300.124 )
H. For all children suspected of having a
disability, local educational agencies shall:
1. Use the criteria adopted by the Virginia
Department of Education, as outlined in this section, for determining whether
the child has a disability; and
2.
Have documented evidence that, by reason of the disability, the child needs
special education and related services. (
34 CFR
300.307(b) )
I. The Virginia Department of
Education permits each local educational agency to use a process for
determining whether a child has a disability based on the child's response to
scientific, research-based intervention and permits each local educational
agency to use other alternative research-based intervention and procedures. (
34 CFR
300.307 )
J. Eligibility as a child with autism. The
group may determine that a child has autism if:
1. There is an adverse effect on the child's
educational performance due to documented characteristics of autism, as
outlined in this section; and
2.
The child has any of the Pervasive Developmental Disorders, also referenced as
autism spectrum disorder, such as Autistic Disorder, Asperger's Disorder,
Rhett's Disorder, Childhood Disintegrative Disorder, Pervasive Developmental
Disorder - Not Otherwise Specified including Atypical Autism as indicated in
diagnostic references.
a. Children with
Asperger's Disorder demonstrate the following characteristics:
(1) Impairments in social interaction, such
as marked impairment in the use of multiple nonverbal behaviors such as
eye-to-eye gaze, facial expression, body postures, and gestures to regulate
social interaction; failure to develop peer relationships appropriate to
developmental level; a lack of spontaneous seeking to share enjoyment,
interests, or achievements with other people (i.e., by a lack of showing,
bringing, or pointing out objects of interest); or lack of social or emotional
reciprocity are noted; and
(2)
Restricted repetitive and stereotyped patterns of behavior, interests, and
activities such as encompassing preoccupation with one or more stereotyped and
restricted patterns of interest that is abnormal either in intensity or focus,
apparently inflexible adherence to specific, nonfunctional routines or rituals,
stereotyped and repetitive motor mannerisms, persistent preoccupation with
parts of objects.
b.
Children with autistic disorder, in addition to the characteristics listed in
subdivisions 2 a (1) and 2 a (2) of this subsection, also demonstrate
impairments in communication, such as delay in, or total lack of, the
development of spoken language (not accompanied by an attempt to compensate
through alternative modes of communication such as gesture or mime). In
individuals with adequate speech, marked impairment in the ability to initiate
or sustain a conversation with others, stereotyped and repetitive use of
language or idiosyncratic language, or lack of varied, spontaneous make-believe
play or social imitative play appropriate to developmental level is
noted.
c. Children with Pervasive
Developmental Disorder - Not Otherwise Specified or Atypical Autism may display
any of the characteristics listed in subdivisions 2 a (1), 2 a (2) and 2 b of
this subsection without displaying all of the characteristics associated with
either Asperger's Disorder or Autistic Disorder.
K. Eligibility as a child with
deaf-blindness. The group may determine that a child has deaf-blindness if the
definition of "deaf-blindness" as outlined in
8VAC20-81-10 is met.
L. Eligibility as a child with deafness. The
group may determine that a child has deafness if:
1. The definition of "deafness" is met in
accordance with
8VAC20-81-10;
2. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of a
deafness, as outlined in subdivision 3 of this subsection; and
3. The child has a bilateral hearing loss
(sensorineural, or mixed conductive and sensorineural), a fluctuating or a
permanent hearing loss, documented auditory dyssynchrony (auditory neuropathy),
and/or cortical deafness.
M. Eligibility as a child with developmental
delay. ( 34 CFR
300.111(b) )
1. The group may determine that a child has a
developmental delay if the local educational agency permits the use of
developmental delay as a disability category when determining whether a
preschool child, aged two by September 30 to six, inclusive, is eligible under
this chapter, and:
a. The definition of
"developmental delay" is met in accordance with
8VAC20-81-10; or
b. The child has a physical or mental
condition that has a high probability of resulting in a developmental
delay.
2. Eligibility as
a child with a disability for children ages two through six shall not be
limited to developmental delay if eligibility can be determined under another
disability category.
3. A local
educational agency is not required to adopt and use developmental delay as a
disability category for any children within its jurisdiction. If the local
educational agency permits the use of developmental delay as a disability
category, it shall comply with the eligibility criteria outlined in this
section.
N. Eligibility
as a child with an emotional disability. The group may determine that a child
has an emotional disability if:
1. The
definition of "emotional disability" is met in accordance with
8VAC20-81-10; and
2. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of an
emotional disability.
O.
Eligibility as a child with a hearing impairment.
1. The group may determine that a child has a
hearing impairment if:
a. The definition of
"hearing impairment" is met in accordance with
8VAC20-81-10; and
b. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of a
hearing impairment, as outlined in subdivision 2 of this subsection.
2. Characteristics of children
with a hearing impairment include unilateral hearing loss (conductive,
sensorineural, or mixed), bilateral hearing loss (conductive, sensorineural, or
mixed), a fluctuating or permanent hearing loss, and/or auditory dyssynchrony
(auditory neuropathy). The hearing loss results in qualitative impairments in
communication/educational performance.
3. The term "hard of hearing" may be used in
this capacity.
P.
Eligibility as a child with an intellectual disability. The group may determine
that a child has an intellectual disability if:
1. The definition of "intellectual
disability" is met in accordance with
8VAC20-81-10;
2. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of an
intellectual disability, as outlined in subdivision 3 of this subsection;
and
3. The child has:
a. Significantly impaired intellectual
functioning, which is two or more standard deviations below the mean, with
consideration given to the standard error of measurement for the assessment, on
an individually administered, standardized measure of intellectual
functioning;
b. Concurrently,
significantly impaired adaptive behavior as determined by a composite score on
an individual standardized instrument of adaptive behavior that measures two
standard deviations or more below the mean; and
c. Developmental history that indicates
significant impairment in intellectual functioning and a current demonstration
of significant impairment is present.
Q. Eligibility as a child with multiple
disabilities. The group may determine that a child has multiple disabilities if
the definition of "multiple disabilities" is met in accordance with
8VAC20-81-10.
R. Eligibility as a child with an orthopedic
impairment. The group may determine that a child has an orthopedic impairment
if:
1. The definition of "orthopedic
impairment" is met in accordance with
8VAC20-81-10; and
2. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of an
orthopedic impairment.
S. Eligibility as a child with other health
impairment. The group may determine that a child has an other health impairment
if:
1. The definition of "other health
impairment" is met in accordance with
8VAC20-81-10; and
2. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of the
other health impairment.
T. Eligibility of a child with a specific
learning disability. ( 34
CFR 300.307 and
34 CFR
300.309 )
1.
The group may determine that a child has a specific learning disability if:
a. The definition of "specific learning
disability" is met in accordance with
8VAC20-81-10; and
b. The criteria for determining the existence
of a specific learning disability are met.
2. The criteria for determining the existence
of a specific learning disability are met if:
a. The child does not achieve adequately for
the child's age or to meet Virginia-approved grade-level standards in one or
more of the following areas when provided with learning experiences and
instruction appropriate for the child's age or Virginia-approved grade-level
standards:
(1) Oral expression;
(2) Listening comprehension;
(3) Written expression;
(4) Basic reading skills;
(5) Reading fluency skills;
(6) Reading comprehension;
(7) Mathematical calculations; or
(8) Mathematical problem solving.
b. The child does not make
sufficient progress to meet age or Virginia-approved grade-level standards in
one or more of the areas identified in subdivision 2 a of this subsection when
using a process based on the child's response to scientific, research-based
intervention; or the child exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, Virginia-approved
grade-level standards, or intellectual development, that is determined by the
group to be relevant to the identification of a specific learning disability,
using appropriate assessments, consistent with
8VAC20-81-70.
c. The group determines that its findings
under subdivisions 2 a and b of this subsection are not primarily the result
of:
(1) A visual, hearing, or motor
impairment;
(2) Intellectual
disability;
(3) Emotional
disability;
(4) Environmental,
cultural, or economic disadvantage; or
(5) Limited English proficiency.
3. The Virginia
Department of Education does not require the use of a severe discrepancy
between intellectual ability and achievement for determining whether a child
has a specific learning disability. (
34 CFR
300.307(a) )
U. Eligibility as a child with
speech or language impairment.
1. The group
may determine that a child has a speech or language impairment if:
a. The definition of "speech or language
impairment" is met in accordance with
8VAC20-81-10;
b. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of speech
or language impairment;
c. The
child has a significant discrepancy from typical communication skills in one or
more of the following areas: fluency, impaired articulation, expressive or
receptive language impairment, or voice impairment; and
d. Information from instruments that are
culturally and linguistically appropriate, including standardized and
criterion-referenced measures, shall be used in conjunction with information
from classroom observations to determine the severity of the communication
impairment.
2. Children
shall not be identified as children having a speech or language impairment if
the area of concern is primarily the result of sociocultural dialect,
delays/differences associated with acquisition of English as a second language,
or within the purview of established norms for articulation and language
development.
3. Speech language
pathology services may be special education or a related service.
V. Eligibility as a child with a
traumatic brain injury. The group may determine that a child has a traumatic
brain injury if:
1. The definition of
"traumatic brain injury" is met in accordance with
8VAC20-81-10; and
2. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of
traumatic brain injury.
W. Eligibility as a child with a visual
impairment.
1. The group may determine that a
child has a visual impairment if:
a. The
definition of "visual impairment" is met in accordance with
8VAC20-81-10;
b. There is an adverse effect on the child's
educational performance due to one or more documented characteristics of visual
impairment; and
c. The child:
(1) Demonstrates the characteristics of
blindness or visual impairment, as outlined in subdivisions 2 and 3 of this
subsection; or
(2) Has any of the
conditions including, but not limited to oculomotor apraxia, cortical visual
impairment, and/or a progressive loss of vision, which may in the future, have
an adverse effect on educational performance, or a functional vision loss where
field and acuity deficits alone may not meet the aforementioned
criteria.
2.
A child with blindness demonstrates the following:
a. Visual acuity in the better eye with best
possible correction of 20/200 or less at distance or near; or
b. Visual field restriction in the better eye
of remaining visual field of 20 degrees or less.
3. A child with a visual impairment
demonstrates the following:
a. Visual acuity
better than 20/200 but worse than 20/70 at distance and/or near; or
b. Visual field restriction in the better eye
of remaining visual field of 70 degrees or less but better than 20
degrees.
X.
Children found not eligible for special education.
1. Information relevant to instruction for a
child found not eligible for special education shall be provided to the child's
teachers or any appropriate committee. Parental consent to release information
shall be secured for children who are placed by their parents in private
schools that are not located in the local educational agency of the parent's
residence. ( 34 CFR
300.622 )
2. If the school division decides that a
child is not eligible for special education and related services, prior written
notice, in accordance with
8VAC20-81-170 shall be given to the
parent(s) including the parent(s) right to appeal the decision through the due
process hearing procedures. (
34 CFR
300.503;
34 CFR
300.507 )
Statutory Authority
§§ 22.1-16 and 22.1-214 of the Code of
Virginia.