In Virginia, over 170,000 K-12 students and 10,000 pre-K students qualify for special education services every school year. These services must be provided at no cost to students' families.
In the United States, all children have the right to a free, appropriate public education. For students with disabilities, that education includes the special education service they require to benefit from that education.
If and when disagreements about special education occur, families have options to address the issue and find a resolution. Whether a school fails to properly evaluate a student or provides ineffective accommodations, parents and guardians can protect their student's right to an education.
The Lento Law Firm Education Law Team works with families to find collaborative resolutions that protect their student's right to an education. We encourage families to call us or connect with us online.
What is Special Education?
Virginia defines special education as:
“specially designed instruction, at no cost to the parent(s), to meet the unique needs of a child with a disability ... The term includes each of the following if it meets the requirements of the definition of special education:
- Speech-language pathology services or any other related service if the service is considered special education rather than a related service under state standards;
- Vocational education and
- Travel training.”
Virginia based this definition on federal law.
Special education is the services and support that a student with disabilities requires to access and benefit from their education. Services cover a spectrum of assistance, from extra time on tests to specialized schools and one-on-one training.
Laws about Special Education
Three federal laws form the basis of disability rights and protection in the United States. They are the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA).
For K-12 public school students, IDEA is the most relevant of the three laws. IDEA establishes the Individualized Education Program (IEP).
IEPs are written documents that set out what special education services and support a student receives during the school day. IEPs:
- It may include a student's goals, a transition plan, or recommended disciplinary action.
- It should be specific to the student.
While a student's disability will determine the services and accommodations a student receives, a school should not base an IEP solely on a student's disability or use the same services or support for every student with a certain disability.
Under IDEA, public school districts have a responsibility to identify any children residing within their boundaries who may have disabilities. Districts must also provide services to these children, free of charge to their families, even if the children are not currently enrolled in the school.
While private and charter schools may have similar special education services, families should be aware that students in these schools have fewer protections under federal law. IDEA provides dispute resolution options for disagreements about special education, but private and charter schools do not have to follow these rules.
Dispute Resolution
IDEA requires that states have dispute resolution options available when disagreements arise over special education. In general, families are encouraged to first schedule a meeting with a member of the school staff to try and resolve the disagreement informally. If such an option is not possible or if good-faith efforts to find a solution fail, families can turn to one of these options.
Virginia offers families the following dispute resolution options:
- Facilitated IEPs
- Mediation
- Complaints
- Due Process Hearings
Beyond federal requirements, Virginia has a Parent Ombudsman for Special Education to help resolve disputes. The Ombudsman's role is to provide neutral and confidential support in an informal setting.
Which dispute resolution option is the best fit for your family and student depends on the circumstances and your end goal. When disagreements escalate to the point of needing formal dispute resolution options, you may want to contact the Lento Law Firm for guidance on which path will best protect your student's education.
Section 504
Students who do not qualify for IEPs may qualify for a 504 Plan. Section 504 has a lower bar for eligibility, and parents or guardians should discuss whether their student would do better with an IEP or 504 Plan.
Federal Review
In 2020, the U.S. Department of Education raised concerns about Virginia's compliance with IDEA. The DoE accused Virginia of failing to meet federal requirements for special education and students with disabilities. Virginia has disputed some of these claims. As of 2023, the state remains under federal review due to issues with monitoring and the state's response to complaints about special education.
One related issue is that Virginia faces a continued shortage of qualified special education teachers. While the teacher shortage is a nationwide problem, Virginia is one of the few states that allows for provisional licenses to fill teaching and staffing vacancies in special education classrooms.
When families meet with school staff, they should ask about how schools are handling both of these issues. Lack of qualified teachers and failure to follow federal law can detrimentally influence a student's education.
Common Terms
Special education uses several terms and acronyms that are unique to the field. Some terms and acronyms are specific to certain disabilities, but three terms are frequently used and worth mentioning.
Free appropriate public education (FAPE) refers to each child's right to an education in the United States. For students with disabilities, this right includes special education services.
Least restrictive environment (LRE) is the practice of including students with disabilities in general education classrooms when possible. Approximately eighty percent of students who receive special education support spend all or most of their days in general education classrooms.
Reasonable accommodations refer to the standard schools must meet to obey federal law. Schools must offer students accommodations that are effective and do not place an undue burden on the school or other members of the school community.
Who Qualifies
Families cannot simply request that a student receive special education services. Under IDEA, to receive special education services, students must:
- Have a qualifying disability and
- That disability must affect their education
In Virginia, the following are qualifying disabilities for IEPs:
- Autism Spectrum Disorders
- Developmental Delay
- Emotional Disability
- Intellectual Disability
- Learning Disability (Dyslexia & Dysgraphia)
- Multiple Disabilities
- Other Health Impairment
- Orthopedic Impairment
- Sensory Disabilities
- Speech-Language Impairment
- Traumatic Brain Injury
Section 504 has a lower bar to qualify for support and services. Students qualify under Section 504 when:
- That student
- has a disability
- has a record of having a disability
- is regarded as having a disability or impairment
- That physical or mental impairment substantially limits at least one major life activity.
Norfolk Public Schools offers a good overview of how Section 504 defines a disability.
Unlike IDEA, Section 504 does not have a list of qualifying disabilities. Students who do not qualify under IDEA for an IEP may meet the requirements under Section 504 for a 504 Plan.
How to Qualify
Richmond Public Schools offers a short overview of how to qualify for special education. The general steps are:
- Referral
- Evaluation
- Eligibility
- Annual Review
- Reevaluation
The Virginia State Board of Education has a page on Evaluation and Eligibility for Special Education. The page includes information on how assessments are made for each disability. One document, Evaluation and Eligibility For Special Education and Related Services, provides a flow chart of the process.
Ensuring your child receives the proper assessment is crucial. While IDEA requires schools to provide “sufficiently comprehensive” assessments, evaluations are not simply about identifying a potential disability. They also inform what types of services and support a school will provide. While this section focuses on qualifying for an IEP under IDEA, the steps for a 504 Plan are similar.
Referral
Referrals can occur before a student begins school due to concerns about developmental delays or academic issues or from a class- or school-wide screening. If a school believes assessment is necessary, and once parents or guardians agree, the child will be tested.
Evaluation
Evaluation and tests are based on a student's potential disability or on what data is needed to make an eligibility determination. Testing can vary depending on a child's age, the suspected disability, and what data is needed.
A student with a hearing or vision impairment, for example, may not need to undergo additional testing. They may instead provide the school district with information or medical records about their disability.
Eligibility
Once a student is considered eligible for special education, the school will schedule a meeting with the parents or guardians for either an IEP or 504 Plan. Depending on a student's age and their disability, they may also be included in the meeting.
Once a student has an IEP or 504 Plan, families should plan to meet at least once a year with the school to review and revise their student's documents. Parents or guardians may request additional meetings if they believe their student needs different services than those currently on their student's plan.
Reassessment
While IDEA mandates that schools must reassess students every three years, schools and families can choose to waive the reassessment. When families may want a reassessment, it is if they believe the results would better reflect their student's current abilities or needs for special education.
Child Find
IDEA requires that all school districts have mechanisms in place to identify and refer students with disabilities. For babies and toddlers, this program is known as Child Find.
Beyond identifying pre-K students with disabilities, several schools offer early intervention programs. The Williamsburg-James City County Public Schools has the Bright Beginnings program. This program works with children who have been identified as having either disabilities or delays. Roanoke City Public Schools offers a similar program, REACH, for toddlers with developmental delays.
SEACs
Virginia law requires that all public school districts have a special education advisory committee (SEAC). School boards appoint members of a SEAC, the majority of whom should be either parents of students with disabilities or individuals who have disabilities. The purpose of SEACs includes:
- Advising school boards on the needs of students with disabilities
- Participating in developing of strategy and policies regarding special education and students with disabilities
- Submitting periodic reports and/or recommendations about the district's special education services and how the district is serving students with disabilities
Falls Church City Public Schools's SEAC page includes a list of current members, upcoming meetings, and how parents and other members of the community can participate in SEAC. If your local school does not have a dedicated webpage for its SEAC, you should contact the school to learn more, including about how to attend meetings and submit public comments.
District Resources
Federal law does not require schools to provide specific accommodations or services. That one school district offers a program does not mean another school district must offer that program.
In general, school districts do offer many similar programs and services as part of their special education departments. Charlottesville City Schools and Loudoun County Public Schools both offer an overview of some of their services on their websites. Most school districts, for example, offer some type of speech/language therapy.
Alexandria City Public Schools offers resources for parents about special education. This includes family engagement workshops.
Arlington Public Schools offers several countywide programs. They divide these programs into pre-K and K-12+.
As required by IDEA, Prince William County Public Schools offers career and transition services. The district's Project SEARCH program is for recent graduates between 18 and 21 and provides a one-year employment preparation program that takes place in a workplace.
Fairfax County Public Schools has several services and programs above and beyond federal requirements. These include:
- A behavior education professional development plan
- An annual conference on special education
- Use of Positive Behavioral Interventions and Supports (PBIS), an evidence-based practice that focuses on the whole child
- A Special Education Enhancement Plan, which is intended to improve outcomes for students with disabilities
- The Fairfax County Special Education PTA (SEPTA), a separate organization from the district's SEAC
While school districts have no obligation to provide the same services or support as other districts, students can benefit from parents knowing of comparable services and accommodations. Even if a school district cannot implement an identical service or program, parents or guardians may be able to petition for a similar option within their district.
Protect Your Student's Education
For students with disabilities, special education is not an extra but a required part of their schooling. If and when schools fail to provide needed services and accommodations, students are the ones who suffer.
Tell us about your case by phone at 888-535-3686 or online and learn more about how the Lento Law Firm Education Law Team can help your student.
