Virginia Law

Article 2. Special Education.

As used in this article:

"Children with disabilities" means those persons (i) who are age two to 21, inclusive, having reached the age of two by the date specified in § 22.1-254; (ii) who have intellectual disability or serious emotional disturbance, are physically disabled, speech impaired, deaf or hard of hearing, visually impaired, or multiple disabled, are otherwise health impaired, including those who have autism spectrum disorder or a specific learning disability, or are otherwise disabled as defined by the Board of Education; and (iii) who because of such impairments need special education.

"Instructional practices to support specially designed instruction in inclusive settings" means structured instructional practices, including sequential, systematic, explicit, and cumulative teaching, that (i) are based on reliable, trustworthy, and valid evidence; (ii) provide access to grade-level content in core or general instruction, supplemental instruction, intervention services, and intensive intervention services; (iii) are developed based on reliable data collection and progress monitoring from both valid and reliable assessments and tracking of progress toward individual goals and objectives; (iv) are able to be differentiated in order to meet the individual needs of students; and (v) align with student need based on special education eligibility, present level of performance, and related goals and objectives.

"Related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. "Related services" also includes school health services, social work services in schools, and parent counseling and training.

"Special education" means specially designed instruction at no cost to the parent to meet the unique needs of a child with a disability, including classroom instruction, home instruction, instruction provided in hospitals and institutions, instruction in physical education, and instruction in career and technical education.

"Specially designed instruction" means instruction for which the content, methodology, or delivery is adapted, as appropriate to the needs of an eligible child, to (i) address the unique needs of the child that result from the child's disability and (ii) ensure that the child has access to the general curriculum so that the child can meet the educational standards that apply to all children within the jurisdiction of the local educational agency.

"Specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. "Specific learning disability" does not include children who have learning problems that are primarily the result of visual, hearing, motor, or intellectual disability, or of environmental, cultural, or economic disadvantage.

Code 1950, § 22-10.3; 1974, c. 480; 1978, c. 386; 1980, c. 559; 1983, c. 538; 1990, c. 444; 1994, c. 854; 2001, c. 483; 2012, cc. 476, 507; 2019, c. 288; 2023, cc. 148, 149; 2024, cc. 468, 502.

A. "Parent," for purposes of this article and regulations promulgated thereto, means:

1. A biological or adoptive parent of a child;

2. A foster parent, even if the biological or adoptive parent's rights have not been terminated, but subject to subsection B;

3. 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);

4. 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

5. If no party qualified under subdivisions 1 through 4 can be identified, or those parties are unwilling to act as parent, a surrogate parent who has been appointed in accordance with 8VAC20-81-220.

B. The biological or adoptive parent, when attempting to act as the parent pursuant to this section and when more than one party is qualified under subsection A to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent has had their residual parental rights and responsibilities terminated pursuant to § 16.1-277.01, 16.1-277.02, or 16.1-283 or a comparable law in another state.

C. The local school division shall provide written notice to the biological or adoptive parents at their last known address that a foster parent is acting as the parent pursuant to this section, and the local school division is entitled to rely upon the actions of the foster parent pursuant to this section until such time that the biological or adoptive parent attempts to act as the parent.

D. If a judicial decree or order identifies a specific person or persons among subdivisions A 1 through A 5 to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the "parent" for purposes of the special education identification, evaluation, and placement of a child and the provision of a free appropriate public education to a child.

E. The Board of Education shall revise the regulations governing the provision of special education services in accordance with this section.

2009, c. 119.

A. The Board of Education shall prepare and supervise the implementation by each school division of a program of special education designed to educate and train children with disabilities between the ages defined in § 22.1-213 and may prepare and place in operation such program for such individuals of other ages. The program developed by the Board of Education shall be designed to ensure that all children with disabilities have available to them a free and appropriate education, including specially designed instruction to meet the unique needs of such children. The program shall require (i) that the hearing of each disabled child be tested prior to placement in a special education program and (ii) that a complete audiological assessment, including tests that will assess inner and middle ear functioning, be performed on each child who is deaf or hard of hearing or who fails the test required in clause (i). The school boards of the several school divisions, the Department for the Blind and Vision Impaired, the Department for the Deaf and Hard-of-Hearing, the Department of Health, and other state and local agencies that can or may be able to assist in providing educational and related services shall assist and cooperate with the Board of Education in the development of such program.

B. The Board of Education shall prescribe procedures to afford due process to children with disabilities and their parents or guardians and to school divisions in resolving disputes as to program placements, individualized education programs, tuition eligibility and other matters as defined in state or federal statutes or regulations. These procedures shall encourage the use of mediation as an informal means of resolving such disputes. Mediation shall not, however, be used to deny or delay the due process rights of parents or guardians. The procedures shall require that all testimony be given under oath or affirmation administered by the hearing officer.

C. The Board of Education may provide for final decisions to be made by a hearing officer. The parents and the school division shall have the right to be represented by legal counsel or other representative before such hearing officer without being in violation of the provisions of § 54.1-3904.

D. Any party aggrieved by the findings and decision made pursuant to the procedures prescribed pursuant to subsections B and C may, within 180 days of such findings and decision, bring a civil action in the circuit court for the jurisdiction in which the school division is located. In any such action, the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate.

D1. In any action brought pursuant to subsection D, the court, in its discretion, may award reasonable attorney fees as part of the costs (i) to a prevailing party who is the parent of a child with a disability; (ii) to a prevailing party who is the Board of Education or a local school division against the attorney of a parent who files a complaint or a subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or (iii) to a prevailing party who is the Board of Education or a local school division against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cause of litigation.

Attorney fees may not be awarded relating to any meeting of the individualized education program (IEP) team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection B.

E. Whenever the Board of Education, in its discretion, determines that a school division fails to establish and maintain programs of free and appropriate public education that comply with regulations established by the Board, the Board may withhold all special education moneys from the school division and may use the payments that would have been available to such school division to provide special education, directly or by contract, to eligible children with disabilities in such manner as the Board considers appropriate.

F. The Board of Education shall supervise educational programs for children with disabilities by other public agencies and shall ensure that the identification, evaluation, and placement of children with disabilities and youth in education programs by other public agencies, as appropriate, are consistent with the provisions of the Board of Education's special education regulations.

G. The Board of Education shall prescribe regulations to provide a range of assessment procedures for the evaluation of children with disabilities. These regulations shall include provision for parents to participate, if they so request, in the consideration of the assessment components to be used. However, such regulations shall not require any local school board to exceed the requirements of federal law or regulations for the identification and evaluation of children with disabilities.

Code 1950, § 22-10.4; 1974, c. 480; 1978, c. 386; 1980, cc. 559, 561; 1981, c. 7; 1982, c. 21; 1985, c. 207; 1990, c. 205; 1991, c. 518; 1994, c. 854; 1997, c. 54; 2007, cc. 33, 52; 2009, c. 468; 2010, c. 447; 2019, c. 288; 2021, Sp. Sess. I, cc. 451, 452.

Any hearing officer appointed pursuant to the procedures provided for in subsections B and C of § 22.1-214 shall have the power to issue subpoenas requiring testimony or the production of books, papers, and physical or other evidence. Any person so subpoenaed who objects may, if the hearing officer does not quash or modify the subpoena at a timely request as illegally or improvidently granted, immediately procure by a petition a decision on the validity thereof in the circuit court of the jurisdiction in which the hearing is to be held. In any case of refusal or neglect to comply with the hearing officer's subpoena, the hearing officer may procure an order of enforcement from such court.

Code 1950, § 22-10.4:1; 1980, c. 561.

For the purposes of subsection F of § 22.1-214 as related to the educational programs provided for or by the Department of Behavioral Health and Developmental Services, "supervise" shall mean providing active support in (i) designing mechanisms for maintaining constant direct contact and the sharing of ideas, approaches and innovations between the Department of Behavioral Health and Developmental Services and the facility staff responsible for providing educational services; (ii) providing consistent oversight, with particular attention to the mental health programs, to ensure that the availability of educational resources and the distribution of funds clearly reflect the needs of the different student populations residing in the various facilities; (iii) developing guidelines, in cooperation with the Department of Behavioral Health and Developmental Services for the evaluation of the performance of the education directors or other education supervisors employed by the Department of Behavioral Health and Developmental Services; (iv) developing and implementing, in cooperation with the Department of Behavioral Health and Developmental Services, programs to ensure that the educational and treatment needs of dually diagnosed children in state facilities are met; and (v) ensuring that the expertise of the Department of Education is utilized by providing technical assistance to the education programs provided for or by the Department of Behavioral Health and Developmental Services in the areas of selection and acquisition of educational materials, curriculum development including career and technical education, when appropriate, and applications for federal grants.

1985, c. 207; 2001, c. 483; 2009, cc. 813, 840; 2012, cc. 476, 507.

The Department of Education shall develop curricula for the school-age individuals in state training centers and curriculum guidelines for the school-age individuals in state hospitals operated by the Department of Behavioral Health and Developmental Services in cooperation with the Department of Behavioral Health and Developmental Services and representatives of the teachers employed to provide instruction to the children. Prior to implementation, the Board of Education shall approve these curricula and curriculum guidelines.

These curricula and curriculum guidelines shall be designed to provide a range of programs and suggested program sequences for different functioning levels and disabilities and shall be reviewed and revised at least every three years. In addition to academic programming, the curriculum guidelines for the school-age individuals in state hospitals operated by the Department of Behavioral Health and Developmental Services shall include affective education and physical education as well as independent living and career and technical education, with particular emphasis on the needs of older adolescents and young adults.

1985, c. 350; 2001, c. 483; 2009, cc. 813, 840; 2012, cc. 476, 507; 2023, cc. 148, 149.

The Department shall:

1. Provide training and guidance documents to local school divisions on the development of individualized education programs (IEPs) for children with disabilities that incorporate specific examples of high-quality present level of performance descriptions, annual goals, and postsecondary transition sections.

2. Develop a required training module for each individual who participates in an IEP meeting that comprehensively addresses and explains in detail (i) each IEP team member's respective role in the IEP meeting, (ii) the IEP development process, and (iii) components of effective IEPs. The training module shall be required for all IEP participants, with the exception of parents, prior to participating in an IEP meeting and at regular intervals thereafter.

3. Annually conduct structured reviews of a sample of IEPs from a sufficiently large sample of local school divisions to verify that the IEPs are in compliance with state and federal laws and regulations governing IEP content, and provide a summary report of the findings of such reviews and recommendations regarding any necessary corrective actions to the reviewed divisions' superintendents, special education directors, school board chairs and vice-chairs, and local special education advisory committees. In reviewing local school divisions' IEPs, the Department shall determine whether the special education and related services, supplementary aids and services, and program modifications that will be provided to enable students with disabilities to participate in nonacademic and extracurricular activities are sufficient, and include its findings and corrective actions in the summary reports it provides to the reviewed local school divisions' superintendents, special education directors, and school board members. Nothing in this section shall be construed to (i) direct the Department to make determinations regarding whether a particular IEP provides a free appropriate public education to any individual student or (ii) authorize the Department to override a parent's consent to proposed revisions to an individual student's IEP. In determining corrective actions, the Department shall make recommendations to the relevant school division regarding, among other things, those individual IEPs for which the IEP team should convene to consider revisions necessary to incorporate content required by special education regulations. For those individual IEPs for which the Department recommends that the IEP team should convene to consider such revisions, the relevant school division shall notify the relevant parents or caregivers of the recommendations issued in the summary report of the structured review conducted pursuant to this subdivision.

4. Develop and maintain a statewide plan for improving (i) its ongoing oversight of local practices related to transition planning and services for children with disabilities and (ii) technical assistance and guidance provided for postsecondary transition planning and services for children with disabilities. At a minimum, such plan shall articulate how the Department will reliably and comprehensively assess the compliance and quality of transition plans for children with disabilities on an ongoing basis and communicate findings to local school division staff and local school boards. The Department shall, no later than December 1 of each year, update the Chairmen of the Senate Committee on Education and Health and the House Committee on Education on its progress in implementing such plan.

5. Develop and maintain a statewide strategic plan for recruiting and retaining special education teachers. At a minimum, such plan shall (i) use data analyses to determine the specific staffing needs of each local school division on an ongoing basis; (ii) evaluate the potential effectiveness of strategies for addressing recruitment and retention challenges, including tuition assistance, differentiated pay for special education teachers, and the expansion of special education teacher mentorships; and (iii) estimate the costs of implementing each such strategy, including the extent to which federal funds could be used to support implementation. The Department shall, no later than November 1 of each year, update the Chairmen of the Senate Committee on Education and Health and the House Committee on Education on its progress in implementing such plan.

6. In order to (i) address variation in rates of determinations of student eligibility for special education and related services both across local school divisions in the Commonwealth and based on specific student disabilities, (ii) promote consistency in such eligibility determinations, and (iii) ensure equal access to special education and related services across local school divisions, (a) review and update all forms and worksheets relating to referral, evaluation, reevaluation, and eligibility, including clarifying any ambiguity or vagueness in the standard for providing an initial evaluation or in eligibility criteria; (b) review and update guidance on the implementation of such referral, evaluation, reevaluation, and eligibility forms and worksheets and the legal obligations of local school boards to conduct initial evaluations and make eligibility determinations for special education and related services; and (c) develop high-quality professional development to support the implementation of such referral, evaluation, reevaluation, and eligibility guidance, forms, and worksheets.

7. (i) Develop criteria for what constitutes "exceptional circumstances" that warrant extension of the 60-calendar day regulatory timeline for complaint investigations and include the criteria in its publicly available complaint resolution procedures, (ii) consistently track the Department's receipt of each sufficient complaint and its issuance of the respective letter of findings, and (iii) require staff to report at least quarterly to the Superintendent on the specific reasons for granting an extension due to "exceptional circumstances" and the amount of time it took to complete each investigation beyond the 60-calendar day regulatory timeline.

8. Develop policies and procedures for considering and addressing credible allegations of local education agency (LEA) noncompliance with the requirements of the Individuals with Disabilities Education Act (P.L. 101-476) that do not meet the current regulatory standard for state complaints. Such policies and procedures shall include expectations and mechanisms for collaboration between the Office of Dispute Resolution and Administrative Services and the Office of Special Education Program Improvement in the Division of Special Education and Student Services at the Department to investigate and resolve such credible allegations of noncompliance that do not qualify for state complaint investigations.

9. Elevate the position of State Parent Ombudsman for Special Education. The State Parent Ombudsman for Special Education shall (i) report to the Superintendent; (ii) systematically track and report to the Department questions and concerns raised by parents to the State Parent Ombudsman for Special Education and special education family support centers established pursuant to § 22.1-214.5; (iii) coordinate with the Parent Training and Information Center on the activities of the special education family support centers established pursuant to § 22.1-214.5; and (iv) develop a one-page comprehensive summary of the roles and responsibilities of the State Parent Ombudsman for Special Education and such special education family support centers, the specific supports the State Parent Ombudsman for Special Education and such special education family support centers can provide to parents, and how to contact the State Parent Ombudsman for Special Education and such special education family support centers. The Department shall make the summary available in multiple languages on its website and as part of the Virginia IEP established pursuant to subdivision 11.

10. Develop and implement a process for systematically auditing and verifying school divisions' self-determinations of compliance with all Individuals with Disabilities Education Act (P.L. 101-476) performance indicators. The verification process shall include a random sample of school divisions each year and ensure that all school divisions' self-determinations are reviewed and verified no less frequently than once every five years.

11. (Effective July 1, 2027) Develop, establish, review and update as necessary at least once every five years, and make available to each local school board an IEP writing, facilitation, tracking, and transfer system to be referred to as the Virginia IEP that includes, at a minimum, an IEP template component and a data system component. The Department shall ensure that such data system component allows for secure transfer of data from division student information systems to the Department. The Department shall also develop and make available to each local school board guidance on the utilization of the Virginia IEP and high-quality professional development to support (i) the effective utilization of the Virginia IEP and (ii) the implementation of instructional practices to support the provision of specially designed instruction in inclusive settings.

12. Develop and publish a data dashboard for the annual public reporting, on a date to be determined by the Superintendent, of state-level, division-level, and school-level special education data, disaggregated by disability type and by subgroups of students with disabilities, including by race, ethnicity, economic disadvantage, English learner status, foster care status, and unhoused status, except when such disaggregation would result in the disclosure of any student's personally identifiable information in violation of relevant federal and state law. Such data dashboard shall include disaggregated (i) results on the early literacy screener provided by the Department, the Virginia Kindergarten Readiness Program, and Standards of Learning assessments and (ii) college and career readiness and learning climate measures.

2021, Sp. Sess. I, cc. 173, 451, 452; 2024, cc. 468, 502.

The Parent Training and Information Center in the Commonwealth designated pursuant to 20 U.S.C. § 1471(e) shall establish special education family support centers in eight distinct regions of the Commonwealth that shall each (i) be staffed by a regional special education family liaison employed by such center, (ii) coordinate with special education parent/family liaisons required to be designated pursuant to subsection R of § 22.1-253.13:2, (iii) develop and implement outreach and support to parents of children with disabilities in its region, and (iv) track and report to the State Parent Ombudsman for Special Education data on questions and concerns raised by parents.

2024, cc. 468, 502.

Each school division shall provide free and appropriate education, including special education, for (i) the children with disabilities residing within its jurisdiction and (ii) the 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 and appropriate 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 and appropriate education, including special education, for such student.

For the purposes of this section, "children with disabilities, residing within its jurisdiction" shall include: (a) those individuals of school age identified as appropriate to be placed in public school programs who are residing in a state facility operated by the Department of Behavioral Health and Developmental Services located within the school division, or (b) those individuals of school age who are Virginia residents and are placed and living in a foster care home or child-caring institution or group home located within the school division and licensed under the provisions of Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 as a result of being in the custody of a local department of social services or welfare or being privately placed, not solely for school purposes.

The Board of Education shall promulgate regulations to identify those children placed within facilities operated by the Department of Behavioral Health and Developmental Services who are eligible to be appropriately placed in public school programs.

The cost of the education provided to children residing in state facilities who are appropriate to place within the public schools shall remain the responsibility of the Department of Behavioral Health and Developmental Services. The cost of the education provided to children who are not residents of the Commonwealth and are placed and living in a foster care home or child-caring institution or group home located within the school division and licensed under the provisions of Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 shall be billed to the sending agency or person by the school division as provided in subsection C of § 22.1-5. No school division shall refuse to educate any such child or charge tuition to any such child.

Each school division shall submit to the Board of Education in accordance with the schedule and by the date specified by the Board, a plan acceptable to the Board for such education for the period following and a report indicating the extent to which the plan required by law for the preceding period has been implemented. However, the schedule specified by the Board shall not require plans to be submitted more often than annually unless changes to the plan are required by federal or state law or regulation.

Each local school division shall complete a self-assessment and action planning instrument addressing inclusion practices, as developed by the Department, once every three years and report the results of the assessment and plans for improvement to the Department, the division's superintendent, the division's special education director, and the chairs of the local school board and local special education advisory committee.

Code 1950, § 22-10.5; 1974, c. 480; 1978, c. 386; 1980, c. 559; 1985, c. 158; 1988, c. 101; 1994, c. 854; 1996, cc. 583, 594; 2009, cc. 813, 840; 2012, cc. 476, 507; 2014, c. 433; 2021, Sp. Sess. I, cc. 451, 452.

The Board shall publicize and disseminate to parents of students who are enrolled in special education programs or for whom a special education placement has been recommended information regarding current federal law and regulation addressing procedures and rights related to the placement and withdrawal of children in special education.

2001, c. 439; 2022, c. 355.

Each local school board shall enact a policy to require that timely written notification is provided to the parents of any student who:

1. Undergoes literacy and Response to Intervention screening and services; or

2. Does not meet the benchmark on any assessment used to determine at-risk learners in preschool through grade 12, which notification shall include all such assessment scores and subscores and any intervention plan that results from such assessment scores or subscores.

2020, c. 336.

A school board may provide special education for children with disabilities either directly with its own facilities and personnel or under contract with another school division or divisions or any other public or private nonsectarian school, agency or institution licensed or certified by the Board of Education or by a licensing authority in the state where the facility is located. Special education for children below the compulsory school attendance age may be provided in nonsectarian child-day programs licensed in accordance with state law.

Code 1950, § 22-10.6; 1974, c. 480; 1980, c. 559; 1994, cc. 376, 854; 1996, c. 133.

A. Special education for visually impaired children provided by a school division shall be established, maintained and operated jointly by the school board and the Virginia Department for the Blind and Vision Impaired subject to the regulations of the Board of Education. Braille instruction shall be included in the student's Individualized Education Plan (IEP), whenever appropriate. When developing the IEP for students with visual impairment, the presumption shall be that proficiency in literacy is essential for such student to achieve satisfactory educational progress. However, use of Braille shall not be required if other special education services are more appropriate to the student's educational needs, and the provision of other appropriate services shall not preclude Braille instruction.

B. The Virginia Department for the Blind and Vision Impaired shall prepare and deliver a program of special education services in addition to the special education provided in the public school system designed to meet the educational needs of visually impaired children between the ages of birth and twenty-one and may prepare and deliver such programs for such individuals of other ages. In the development of such a program, the Virginia Department for the Blind and Vision Impaired shall cooperate with the Board of Education and the school boards of the several school divisions. The Virginia Department for the Blind and Vision Impaired shall assist the Board of Education and the school boards of the several school divisions with in-service training in Braille for currently employed teachers of students who are blind and visually impaired.

C. As used in this section:

"Braille" means the system of reading and writing through touch and is commonly known as standard English Braille Grade 2.

"Program" means a modified program which provides special materials or services and may include the employment of itinerant teachers or resource room teachers for the visually impaired.

"Visually impaired" shall be defined by the Board of Education and the Virginia Department for the Blind and Vision Impaired.

Code 1950, § 22-10.7; 1974, c. 480; 1978, c. 386; 1980, c. 559; 1990, c. 803; 1992, c. 755; 1995, c. 750; 1998, c. 852.

The Department of Education shall annually prepare and distribute to local school boards packets of information describing the educational and other services available through the Virginia School for the Deaf and the Blind, the Virginia Department for the Deaf and Hard-of-Hearing, and the Virginia Department for the Blind and Vision Impaired to students who are identified as deaf or hard of hearing or visually impaired. Local school boards shall annually post this information on the school division's website and inform the parents of those students who are identified as deaf or hard of hearing or visually impaired of its availability. School boards shall ensure that packets of such information are available in an accessible format for review by parents who do not have Internet access.

1998, c. 351; 2000, c. 285; 2011, c. 216; 2015, c. 55; 2019, c. 288.

A. In developing an individualized education program (IEP) for a child identified as deaf or hard-of-hearing, in addition to any other requirements established by the Board of Education, each local school division may ensure that IEP teams consider the child's specific communication needs and address those needs as appropriate in the child's IEP. In considering the child's needs, the IEP team may expressly consider the following:

1. The child's individual communication mode or language;

2. The availability to the child of a sufficient number of age, cognitive, academic, and language peers of similar abilities if the parents so desire;

3. The availability to the child of deaf or hard-of-hearing adult models of the child's communication mode or language;

4. The provision of direct and ongoing language access to teachers of the deaf and hard-of-hearing, interpreters, psychologists, educational audiologists, speech-language pathologists, administrators, and other special education personnel who are knowledgeable due to specific training and who are proficient in the child's primary communication mode or language;

5. The provision of communication-accessible academic instruction, school services, and direct access to all components of the educational process, including recess, lunch, extracurricular social and athletic activities, and the equal opportunity to participate in advanced coursework, technical vocational coursework, and academic classes as identified by the IEP team;

6. Equipping children identified as deaf or hard-of-hearing with appropriate assistive technology across a full spectrum; and

7. That the Virginia School for the Deaf and the Blind may be the least restrictive environment for the child.

B. No child identified as deaf or hard-of-hearing may be denied the opportunity for instruction in a particular communication mode or language solely because another communication mode or language was originally chosen for the child.

C. A child may receive instruction in more than one communication mode or language.

D. For the purposes of this section, "communication mode or language mode" means one or more of the following systems or methods of communication applicable to children identified as deaf or hard-of-hearing: (i) American Sign Language; (ii) English-based manual or sign systems; (iii) oral, aural, speech-based training; (iv) spoken and written English, including speech reading, lip reading, or cued speech; and (v) communication with assistive technology devices to facilitate language and learning.

2013, cc. 704, 786.

A. The Department of Education shall establish, make available to each school board, and post on its website guidelines for individualized education program (IEP) teams to utilize when developing IEPs for children with disabilities to ensure that IEP teams consider the need for age-appropriate and developmentally appropriate instruction related to sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries of others.

B. In developing IEPs for children with disabilities, in addition to any other requirements established by the Board, each local school board shall ensure that IEP teams consider the guidelines established by the Department of Education pursuant to subsection A.

2020, cc. 51, 170; 2024, c. 493.

A. For the purposes of this section, "language developmental milestones" means milestones of development aligned to the existing instrument used to assess the development of children with disabilities pursuant to federal law.

B. 1. The Department, in coordination with the Department for the Deaf and Hard-of-Hearing and the Department of Behavioral Health and Developmental Services, shall establish an advisory committee for the purpose of soliciting input from members on the selection of language developmental milestones for inclusion in a resource for use by parents of a child from birth to age five who is identified as deaf or hard of hearing to monitor and track the child's expressive and receptive language acquisition and developmental stages toward English literacy. The advisory committee shall consist of 16 nonlegislative citizen members, nine of which shall be voting members as described in subdivision 2 and seven of which shall be nonvoting members as described in subdivision 3. The majority of members shall be deaf or hard of hearing, and all of the members shall have experience in the field of education of individuals who are deaf or hard of hearing. The advisory committee shall have a balance of members who personally, professionally, or parentally use the dual languages of American Sign Language and English and members who personally, professionally, or parentally use only spoken English.

2. The nine voting members of the committee shall be as follows:

a. One parent of a child who is deaf or hard of hearing who has chosen American Sign Language as the primary language for his child;

b. One parent of a child who is deaf or hard of hearing who has chosen spoken language as the communication mode for his child;

c. One parent of a child who is deaf or hard of hearing who has chosen cued speech as the communication mode for his child;

d. One teacher for the deaf or hard of hearing or developmental specialist who possesses the highest skill level in the development of American Sign Language competence with experience in early intervention;

e. One teacher for the deaf or hard of hearing or developmental specialist who possesses the highest skill level in the development of spoken language competence for children with hearing loss with experience in early intervention;

f. One teacher for the deaf or hard of hearing or early intervention specialist who possesses the highest skill level in the development of cued speech or language competence with experience in early intervention;

g. One speech-language pathologist who possesses the highest skill level in the development of American Sign Language with experience in early intervention;

h. One speech-language pathologist who possesses the highest skill level in the development of spoken language for children with hearing loss with experience in early intervention; and

i. One service coordinator from early intervention with experience in providing families with unbiased information regarding communication methodologies available to families.

3. The seven nonvoting members of the committee shall be representatives of each of the following agencies or committees, as determined by the agency head or committee chair:

a. The Virginia Early Hearing Detection and Intervention Program Advisory Committee;

b. The Virginia School for the Deaf and the Blind;

c. The Infant and Toddler Connection of Virginia;

d. The Virginia Department of Education;

e. The Center for Family Involvement at the Virginia Commonwealth University Partnership for People with Disabilities;

f. The Virginia Department for the Deaf and Hard-of-Hearing; and

g. The Virginia Association of the Deaf.

C. No later than January 1, 2023, the Department, in coordination with the Department for the Deaf and Hard-of-Hearing and the Department of Behavioral Health and Developmental Services, shall provide the advisory committee established pursuant to subsection B with a list of all existing language developmental milestones from standardized norms and any relevant information regarding such language developmental milestones for possible inclusion in the parent resource set forth in subsection D. No later than June 1, 2023, the advisory committee shall recommend language developmental milestones for inclusion in the parent resource and may make recommendations for tools or assessments to be included in an educator resource set forth in subsection E for use in assessing the language and literacy development of children from birth to age five who are deaf or hard of hearing. No later than June 30, 2023, the Department, in consultation with the Department for the Deaf and Hard-of-Hearing and the Department of Behavioral Health and Developmental Services, shall select language developmental milestones for inclusion in the parent resource and inform the advisory committee of its selections.

D. The Department, in consultation with the Department for the Deaf and Hard-of-Hearing and the Department of Behavioral Health and Developmental Services, shall, after considering the recommendations submitted by the advisory committee, select language developmental milestones for inclusion in a resource, and develop such resource, for use by parents of a child from birth to age five who is identified as deaf or hard of hearing to monitor and track the child's expressive and receptive language acquisition and developmental stages toward English literacy. Such parent resource shall:

1. Be appropriate for use, in both content and administration, with children who use American Sign Language, English, or both;

2. Present the language developmental milestones selected pursuant to subsection C in terms of typical development of all children in a particular age range;

3. Be written for clarity and ease of use by parents;

4. Be aligned to the Department's existing infant, toddler, and preschool guidelines; the existing instrument used to assess the development of children with disabilities pursuant to federal law; and state standards in English language arts;

5. Make clear that parents have the right to select American Sign Language, English, or both for their child's language acquisition and developmental milestones;

6. Make clear that the parent resource is not a formal assessment of language and literacy development and that parents' observations of their child may differ from formal assessment data presented at an Individual Family Service Plan (IFSP) or Individualized Education Program (IEP) meeting;

7. Explain that parents may bring the parent resource to an IFSP or IEP meeting for purposes of sharing their observations about their child's development; and

8. Include fair, balanced, and comprehensive information about American Sign Language and English and respective communication modes as well as available services and programs.

The Department, the Department for the Deaf and Hard-of-Hearing, and the Department of Behavioral Health and Developmental Services shall jointly disseminate the resource to parents of children from birth to age five who are deaf or hard of hearing.

E. The Department, in coordination with the Department for the Deaf and Hard-of-Hearing and the Department of Behavioral Health and Developmental Services, shall, after considering any recommendations submitted by the advisory committee, select existing tools or assessments for early intervention specialists and educators for use in assessing the language and literacy development of children from birth to age five who are deaf or hard of hearing. Such tools or assessments shall:

1. Be in a format that shows stages of language and literacy development;

2. Be selected for use by educators to track the expressive and receptive language acquisition and developmental stages toward English literacy of children from birth to age five who are deaf or hard of hearing; and

3. Be appropriate, in both content and administration, for use with children who are deaf or hard of hearing and who use American Sign Language, English, or both.

The Department, the Department for the Deaf and Hard-of-Hearing, and the Department of Behavioral Health and Developmental Services shall jointly disseminate the tools or assessments selected pursuant to this subsection to local educational agencies and provide materials and training on their use. Such tools or assessments may be used by a child's IFSP or IEP team, as applicable, to track the expressive and receptive language acquisition and developmental stages toward English literacy of such child or to establish or modify IFSP or IEP plans.

F. In addition to the powers and duties set forth above, the advisory committee may:

1. Advise the Department, the Department for the Deaf and Hard-of-Hearing, and the Department of Behavioral Health and Developmental Services or its contractor on the content and administration of the existing instrument used to assess the development of children who are deaf or hard of hearing in order to ensure the appropriate use of such instrument for the assessment of the language and literacy development of children from birth to age five who are deaf or hard of hearing; and

2. Make recommendations regarding future research to improve the measurement of the language and literacy development of children from birth to age five who are deaf or hard of hearing.

G. If a child from birth to age five who is deaf or hard of hearing does not demonstrate progress in expressive and receptive language skills as measured by one of the educator tools or assessments selected pursuant to subsection E or by the existing instrument used to assess the development of children who are deaf or hard of hearing, such child's IFSP or IEP team, as applicable, shall explain in detail the reasons why the child is not meeting or progressing toward the language developmental milestones and shall recommend specific strategies, services, and programs that shall be provided to assist the child's progress toward English literacy.

H. No later than August 1, 2024, and no later than August 1 of each year thereafter, the Department, in coordination with the Department for the Deaf and Hard-of-Hearing and the Department of Behavioral Health and Developmental Services, shall produce a report, using existing data reported in compliance with the federally required state performance plan on students with disabilities, that compares the language and literacy development of children from birth to age five who are deaf or hard of hearing with the language and literacy development of their peers who are not deaf or hard of hearing and shall make such report available to the public on its website.

I. The Department, the Department for the Deaf and Hard-of-Hearing, and the Department of Behavioral Health and Developmental Services shall comply with the provisions of the federal Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) and the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) in carrying out the provisions of this section.

J. The advisory committee function shall terminate effective June 30, 2023.

2022, cc. 238, 240.

For the purpose of improving the quality of the education and training provided to the school-age children in state hospitals and training centers operated by the Department of Behavioral Health and Developmental Services, there is hereby established a program of grants from such funds as are appropriated by the General Assembly to promote the research and development of innovative methods of teaching children with mental illness, intellectual disability, or serious emotional disturbance in residential settings. This program shall be available to the education directors and instructional staffs of the state hospitals and training centers operated by the Department of Behavioral Health and Developmental Services. The Board of Education shall award these grants on the basis of the recommendations of an advisory committee composed of the Director of the Virginia Treatment Center for Children, two representatives of the Department of Education and two representatives of the Department of Behavioral Health and Developmental Services. The advisory committee shall establish objectives for these grants, develop requests for proposals and set criteria for evaluating the applications for funds.

1985, c. 332; 2009, cc. 813, 840; 2012, cc. 476, 507.

The Superintendent of Public Instruction shall make available special education transition materials for students and parents to be used during a student's annual Individualized Education Program meeting as required by the State Board of Education Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81-118 and 20 U.S.C. § 1400 et seq.) and direct local school divisions to use the material to the fullest extent possible. Such materials shall be prepared and updated as necessary by the Department of Education and shall include information describing services that can be provided in the least restrictive environment possible and the purpose and use of temporary guardianship, limited guardianship, and guardianship, as those terms are defined in § 64.2-2000.

2020, c. 855.

Each public high school in the Commonwealth shall publicly identify on its official website the faculty member responsible for special education transition planning and coordination at such high school.

2023, cc. 280, 281.

A. If a child's individualized education program calls for placement in a private nonreligious school, agency, or institution, payment for reasonable tuition cost and other reasonable charges shall be made from the state pool of funds pursuant to § 2.2-5211.

B. Where a school board enters into an agreement with the Wilson Workforce and Rehabilitation Center or a special education regional program established pursuant to regulations of the Board of Education, the Board of Education is authorized to reimburse the school board from such funds as are appropriated for this purpose.

C. The Board of Education is further authorized to reimburse each school board operating a preschool special education program for children with disabilities aged two through four, through the Standards of Quality Special Education account.

Code 1950, § 22-10.8; 1974, c. 480; 1978, c. 386; 1980, c. 559; 1988, c. 96; 1989, c. 106; 1990, c. 277; 1993, cc. 110, 191; 1996, c. 133; 2005, c. 928; 2015, c. 542.

In order to protect the interests of the Commonwealth and local governments and provide for the safety and welfare of children with disabilities, all placements of children with disabilities facilitated by a school division in an out-of-state special education facility shall be processed through the Interstate Compact on the Placement of Children as provided in Chapters 10 (§ 63.2-1000 et seq.) and 11 (§ 63.2-1100 et seq.) of Title 63.2.

1983, c. 376; 1994, c. 854.

Nothing in this article shall be construed to restrict or prohibit the use of any federal, state or local funds made available under any federal, state or local appropriation or grant.

Code 1950, § 22-10.9; 1974, c. 480; 1980, c. 559.

The governing body of any county, city or town is hereby authorized and empowered to appropriate and expend funds of the county, city or town in furtherance of the education of children with disabilities residing in such county, city or town who attend Wilson Workforce and Rehabilitation Center or public or private nonsectarian schools, or public or private nonsectarian child-day programs for children below the compulsory school attendance age, whether within or without the county, city or town and whether within or without the Commonwealth.

Code 1950, § 22-10.10; 1974, c. 480; 1980, c. 559; 1989, c. 106; 1994, cc. 376, 854; 2015, c. 542.

A. Each disabled child enrolled in and attending a special education program provided by the school division pursuant to any of the provisions of § 22.1-216 or § 22.1-218 shall be entitled to transportation to and from such school or class at no cost if such transportation is necessary to enable such child to obtain the benefit of educational programs and opportunities.

B. A school board may, in lieu of providing transportation on an approved school bus, allot funds to pay the reasonable cost of special arrangement transportation. The Board of Education shall reimburse the school board sixty percent of such cost if funds therefor are available.

C. Costs for operating approved school buses which are equipped or used primarily for transporting children with disabilities shall be reimbursed according to the regulations promulgated by the Board of Education from such state funds as are appropriated for this purpose.

Code 1950, § 22-10.11; 1974, c. 480; 1975, cc. 464, 513; 1978, c. 386; 1980, c. 559; 1983, c. 521; 1994, c. 854; 1996, cc. 123, 247.

Repealed by Acts 1985, c. 421.