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Special Needs

Proposed changes to special education regulations could affect many kids

By KJ Mushung

Special education advocates are battling over proposed changes to the state’s regulations that some say remove protections for Virginia’s most vulnerable citizens. Education officials say the changes are necessary to comply with new federal laws. And those who will be affected most are the ones who usually don’t get a say at all: disabled children.

Regulations currently in place allow for students who are labeled developmentally delayed to receive services up to age 9, short-term benchmarks in schools for special education students, functional behavior assessments for students with long-term disciplinary problems, parental participation in the referral and screening process of their children for services, and more. But advocates say that if the new regulations are put in place, the services for these children will be cut back.

“My opinion is that they don’t do enough to keep the protections children in the state of Virginia have enjoyed, and they don’t protect parents’ rights that they have had,” said Kim Lett, Youth Services Transition Specialist at the disAbility Resource Center. “As advocates, we are not asking the governor or the Virginia Board of Education (VBOE) for anything new. We asked them to keep what Virginia has always had. [If finalized,] this [will be] the first time, I think, ever that rights have been taken away from Virginians or lessened from any one distinct group. And that group just happens to be kids with disabilities.”

The Virginia Coalition for Students with Disabilities (VCSD) concurs. In a letter to Gov. Tim Kaine dated Nov. 6, the organization wrote, “The proposed regulations represent a significant policy shift for Virginia. If these regulations are approved in their current form, an entire class of citizens in Virginia will lose rights for the first time in over 20 years. Instead of ensuring that Virginia leads the way as you have championed, these regulations will put the Commonwealth years behind by taking away the hard-won gains of children with disabilities.”

On the other hand, education officials say the changes are necessary to comply with new federal mandates.

Charles Pyle, Director of Communications at the Virginia Department of Education (VDOE), said that the VBOE didn’t just wake up one fine day and decide to rewrite the state’s regulations.

A few years ago, congress made changes to and re-authorized Individuals with Disabilities Education Act (IDEA), which is the federal decree that deals with special education. The U.S. Department of Education rewrote its regulations to reflect the federal laws after the new laws were published. According to Pyle, states have to follow through.

“The process was triggered by action on the federal level, which requires a follow-up action on the part of Virginia and the other states. So this is being played out, not only in the Commonwealth, but every state in the Union as state-level regulations have to be modified to ensure that they are in line with the federal requirements,” said Pyle.

In an interview with Doug Cox, VDOE Assistant Superintendent, he stated, “The Department of Education certainly did not try to remove any protections for children in these regulations. We certainly tried to take a look at the current status of special ed, looking at new trends and research, and certainly tried to pass on some of the flexibility that the new IDEA… allowed us to do.”

The changes to the state’s regulations are so numerous and so scattered throughout those regulations, that it can be difficult to comprehend their scope. A PDF document covering the final review of the proposed revisions, dated Sept. 25, 2008, is 577 pages long. If someone wanted to look at the current regulations, that PDF document, dated March 27, 2002, is 113 pages long.

Revising regulations is a process that takes about two years from start to finish, and Virginia is currently in the home stretch. First, the public is notified through a notice of intended regulatory action that there was a vote in open session to let the public know the process to revise the regulations has begun. Then there’s the initial drafting of the proposed regulations, which is then followed by an opportunity for the public to weigh in and for changes to the draft to be made. The last stage is the adoption of the final draft of the proposal.

The notice of intended regulatory action for this matter was approved on Oct. 25, 2006. Shortly after the U.S .Department of Education finalized its new regulations, the VBOE put everyone on notice that it was beginning the process of revising the state’s regulations.

Initially, the proposed changes would have allowed, among other things, for school officials to determine that a student was no longer disabled and discontinue special-education services for that child without parental consent. But the uproar from parents, advocates and even the governor resulted in that aspect of the proposal being removed.

Lett says that now the main problems with the proposed regulations are: the elimination of Child Study Committees, which are set to be replaced by Child Find; the change in age for developmental delay services from ages 2 to 9 to 2 to 6; and the removal of short-term benchmarks and functional behavior assessments. (Some of these issues will be addressed in our next issue.)

According to Lett, the proposal removes short-term benchmarks in schools because some believe it takes too much paperwork, too much of the teachers’ time and therefore costs more. But parents want to know how they’re children are progressing. She says these benchmarks also may include parents in the planning process more when children have short-term goals to reach.

Without Child Study Committees, Lett says some children are going to end up in regular classrooms without the services they need. That puts a strain on teachers and can affect the yearly progress reports, SOL scores and standing of schools.

Instead, the VBOE intends to initiate Child Find, which according to the Sept. 25 draft of the proposed regulation changes, will include parent participation. Part of it reads, “Child Find: Expand the provisions for Child Find to include a framework for school-based teams (formerly known as Child Study Committees), timelines, and parent participation in the local education area’s (LEA) processing of referrals.”

“[Currently] the Child Study Committee gathers to discuss issues of concern to the student and the parents, perhaps the school members,” explained Lett. “And in looking at their concerns, the committee could then decide, ‘Do we go forward and evaluate this child for special education services?’”

The Child Study Committee determines eligibility, not if children actually receive special education services. The state then allows 65 business days from when the parents agree to evaluations of their children to present the results of the evaluations to the parents. Then it’s determined if the child will receive special education or not.

But Lett says if the committees are replaced with Child Find, school officials will decide who will qualify for services under the new criteria. “So, there’s no conformity in the state. You could be considered eligible in Stafford County, move to Spotsy and not be considered eligible there,” said Lett.

“People are going to disagree on those kind of changes. That’s what a public process is about, people of different viewpoints. The views of a special education administrator on what might make the laws better may well differ and differ sharply from the views of a parents organization. And so, you’re going to have these disagreements. That’s part of the process, and it’s actually intended to work that way so everyone can be heard,” said Pyle.

Some politicians are weighing in on the debate.

In a letter to State Secretary of Education Thomas R. Morris, Delegate Bill Howell (R-Fredericksburg) wrote: “After extensive review, I believe the majority of the proposed changes provide little benefit yet have the potential to greatly diminish the rights and protections of many students served in Virginia schools.”

Lett adds that, in denying services that kids need, the governor and VBOE would be shifting the burden to the teachers in regular classrooms and parents of those who have to deal with their children’s issues alone.

“We’re asking to keep things as they are now, not for anything new. [Gov.] Kaine’s motto has been ‘Virginia Leading the Way.’ In taking these protections away, Virginia is not leading the way,” insisted Lett.

A Parent’s Guide to Special Education can be found on the VDOE Web site at: www.doe.virginia.gov/VDOE/Instruction/Sped/parent_guide.pdf

Source: VA Department of Education

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