16.6 Basic Special Education Law
Library | Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.) |
16.6 BASIC SPECIAL EDUCATION LAW
16.601 Eligibility for Special Education and Related Services. Students with qualifying disabilities that adversely affect their educational performance such that they need the content, methodology, or delivery of their instruction changed are eligible for special education and related services. 177 Virginia provides special education and related services to children
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ages two through twenty-one, inclusive, with a disability identified in the Individuals with Disabilities Education Act (IDEA), when that disability adversely affects their educational performance. 178
The disabilities identified in the IDEA are autism, deaf-blindness, deafness, emotional disability, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment including blindness. 179 Young children who are experiencing developmental delays in physical development, cognitive development, communication development, social or emotional development, or adaptive development can be found to have a developmental delay and thus qualify for special education. 180 In Virginia, children ages two through six years old with such delays can be identified as having a developmental delay and be found eligible for special education and related services. 181 Note, however, that local school divisions have the option not to use the category of developmental delay. 182 In such cases, students who would otherwise be eligible for special education services as a developmentally delayed child would have to be found eligible based on one of the other, more specific, disability categories.
In addition to meeting the age and the disability category requirements of the IDEA, in order to qualify for special education and related services, a child's disability must adversely affect his or her educational performance. 183 Educational performance includes academic achievement and functional performance. 184 The adverse effect on education performance (academic or functional) in school must result in the student having a need for specially designed instruction. 185 Specially designed instruction is defined as an adaptation in the content, methodology, or delivery of instruction. 186 These adaptations to instruction are broadly defined to include academic and non-academic instruction in school. Examples include adaptations to physical
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education and to instruction in career and technical education. 187 Given the breadth of the definition of "specially designed instruction," nearly all students with disabilities that adversely affect their educational performance will require special education.
At times, schools and parents mistakenly believe that students with disabilities who are performing at grade level, or meeting benchmark test scores, or who are not failing cannot be found eligible for special education services because their educational performance is not being adversely affected by their disabilities. The federal regulations as well as federal cases have addressed this point. The federal regulations state that every child with a disability who needs special education and related services is entitled to receive them in order to ensure they receive a free appropriate public education "even though [they have] not failed or been retained in a course or grade, and [are] advancing from grade to grade." 188 Thus, this regulation makes it clear that a child with a disability is still entitled to receive special education if needed even though the child makes passing grades.
In Board of Education v. S.G., an unpublished district court opinion that was affirmed by the Fourth Circuit, a student with an emotional disturbance that caused the student to miss school, among other things, was denied special education services because she performed well academically. 189 The IEP team, over objections of the student's parents, used the student's good grades as the sole criterion for determining whether her disability was adversely impacting her educational performance. The court concluded that the IEP team was in error. The court stated "special education services must be broadly defined to include instruction in a therapeutic setting for a schizophrenic child who needs greater support services in his or her learning environment, but who is otherwise intellectually capable of mastering a general education curriculum." 190 The court also referred to the 1983 legislative history of the IDEA in which it was recognized that special education should meet a child's unique educational needs, "broadly construed to include . . . academic, social, health, emotional, communicative, physical and vocational needs." 191 Thus, even when children have disabilities that do not cause them to suffer negative consequences in terms of test scores or grades, if their disability
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adversely affects their social, health, emotional, communicative, physical, or vocational needs in school, they require special education services.
16.602 Parental Rights and the Definition of "Parent." Both parents and children have rights under the IDEA. The rights of parents include both substantive and procedural rights, and the IDEA emphasizes repeatedly the right of parents to participate in the education of their children. 192
Parents' rights include the right to examine their child's education records; 193 consent to evaluations of the child; 194 attend and participate in IEP meetings; 195 independent educational evaluations; 196 consent to an IEP before a school can implement it; 197 and request a due process hearing or mediation regarding any disagreement about the identification, evaluation, IEP, or placement of a student with disabilities. 198 Parents also have the right to consent, which they may revoke, 199 before their child's special education services are changed or terminated. 200 Parents retain these rights until children with disabilities reach the age of majority, which in Virginia is age 18. 201
Given the many rights afforded parents under the IDEA, it is important to understand who qualifies as a "parent." For special education purposes, "parent" is defined in the Virginia Code: A parent can be (i) a biological or adoptive parent of the child; (ii) a foster parent, even if the biological or adoptive parent's rights have not been terminated; (iii) a guardian "generally authorized to act as the child's parent or authorized to make educational decisions for the child (but not the Commonwealth if the child is a ward of the Commonwealth)"; (iv) an "individual acting in the place of a biological or adoptive parent (including grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare"; or, (v) if no willing party qualified under the first four categories
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may be identified, a surrogate parent appointed in accordance with 20-81-220. 202
At times, more than one person can qualify as a "parent" under these regulations. Virginia law provides a hierarchy for assigning special education decision-making rights. When attempting to act as parent, the biological or adoptive parent is presumed to be the parent, unless residual parental rights and responsibilities have been terminated. 203 When the biological or adoptive parent is not able or willing to act as parent, a foster parent, guardian, or other similar person may act as parent unless or until the biological or adoptive parent resumes his or her duties. 204 A judge may override the hierarchy by appointing someone to make educational decisions for the child. 205 Thus, a judge overseeing a child's abuse or neglect case could determine that the foster parent will be the parent in the context of the child's special education needs and rights instead of the biological parent or anyone else.
When the biological or adoptive parent is not attempting to act, Virginia law favors allowing individuals who have a relationship with the child to serve as parent over the appointment of a surrogate parent. 206 Additionally, an individual can only become a surrogate parent after being assigned to act as such by the local educational agency (LEA) or being appointed by the judge in the case of a child who is the ward of the state. 207 Thus, each LEA must have procedures in place for determining both whether a child needs a surrogate parent and for assigning a surrogate parent to the child. 208 The LEA must also ensure that the surrogate has the "knowledge and skills that ensure adequate representation of the child," is not an employee of the state education agency, the LEA, or any other agency that "is involved in the care of the child," and has "no personal or professional interest that conflicts with the interest of the child." 209
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All of these rights afforded to the parents of children with disabilities transfer to the child when the child reaches the age of majority. 210
16.603 Free Appropriate Public Education (FAPE). Students with disabilities have a right to a free appropriate public education (FAPE). 211 A free appropriate public education is defined in the IDEA as special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [20 U.S.C. § 1414(d) ]." 212
The United States Supreme Court recently clarified the definition of FAPE in Endrew F. v. Douglas County School District. 213 In Endrew, the Court held that while the right to FAPE does not entitle children with disabilities the right to have their educational potential...
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