SB 545: Scholarships for Disable Students

August 30, 2006

The special subcommittee held its first meeting on August 30, 2006. During the 2006 Regular Session, Senator H. Russell Potts, chairman of the Senate Committee on Education and Health, appointed a special subcommittee of Senators Lambert (chair), Blevins, and Ruff to study SB 545 and examine the issues relating to scholarships for disabled students. The meeting focused on the amendment in the nature of a substitute for SB 545, which was adopted by the special subcommittee during the meeting. The bill as introduced was amended to provide for a Tuition Assistance Grant Program for Students with Disabilities (Grant Program), rather than a scholarship for disabled students. Senator Stosch, citizens, speakers representing the Virginia Depart-ment of Education (VDOE), and other interested parties attended the meeting.

SB 545 Overview

Senator Stosch, the bill's patron, dis-cussed the amendment in the nature of a substitute for SB 545, which establishes the Grant Program for students with disabilities. The Grant Program provides $10,000 a year in tuition assistance to students with disabili-ties to attend a private school of their choice and is designed to assist families who are dissatisfied with their child's progress in the public schools under an Individualized Education Program (IEP). There are four conditions a parent must meet in order to receive assistance for their child:

• The student must attend a public school in Virginia and receive special education services for at least one year.
• Prior to the beginning of the school year, the parent must obtain acceptance for admission of the student to an eligible private school.
• The parent must notify the division superintendent of his intent to apply for the Grant Program.
• The parent must execute a written statement asserting dissatisfaction with his child's progress, acknowledging that the public school has offered an IEP in accordance with the federal Individuals with Disabilities Education Act (IDEA), as amended.

The Board of Education is charged with promulgating regulations to implement the Grant Program in accordance with the IDEA. The Grant Program sets forth requirements for eligibility of private schools, including that they must be a nonsectarian Virginia private school that holds a current unrestricted license to operate as a school for students with disabilities under Virginia law. Senator Stosch invited several families to share their personal stories with the special subcommittee concerning how their children were unable to succeed in the public schools under an IEP, but flourished in private school.

Speakers

Patricia Abrams - Director, Office of Special Education Instructional Services, VDOE
Dr. Abrams described the current requirements under federal law to ensure that students with disabilities receive the education required under IDEA. Federal law requires that:

• Schools provide a free and appropriate public education to every identified child with a disability, which is defined as a special education and related services that are provided at public expense, under public supervision and direction, and without charge from birth through the age of 21.
• Public schools meet federal and state require-ments provided in conformity with an IEP.

Case law has determined that what is appro-priate means that there must be access to special-ized instruction and that the education must be individually designed to confer educational benefit to the child. Dr. Abrams identified the conditions under which students may receive education services in a private school:

• An IEP team, which includes the parent, determines that private school placement is appropriate.
• The parent places the child in a private school and requests reimbursement.
• The parent places a child in a private school at their own expense.

Under the third condition, if the public school provided a free and appropriate public education (FAPE), it would not be required to pay for the cost of educating the child at a private school .

Mr. Ron Geiersbach - Specialist, Office of Dispute Resolution and Administrative Services, VDOE
Mr. Geiersbach summarized the current procedural safeguards available to parents of children with disabilities under the IDEA, which include: records, meetings, independent evalua-tion, written prior notice, parental consent, mediation, state complaint resolution, a due process hearing, civil action to appeal due process, attorney's fees, placement during dis-putes, and tuition reimbursement. He also gave an overview of the special education mediation system, complaint resolution system, and the due process hearing system, which included the following points:

• Mediation may be requested any time there is a disagreement between the parents and the school system.
• The complaint resolution system is triggered by a request from the parent stating that there was a violation of the IDEA, its regulations, or special education regulations.
• A due process hearing may be requested for disagreements regarding identification of disability and eligibility for special education services, evaluation of the child, educational placement and services for the child, or provision of a free and appropriate education to a child with a disability.
• A resolution session is required before a due process hearing can be held, unless it is waived by both parties in writing.
• The hearing officer is required to be independent and a list of hearing officers must be made available to parents.
• Parents have the right to an attorney or an advocate.
• Both parties must have the opportunity to present witnesses and documents, compel the attendance of witnesses, and confront and cross-examine witnesses.

Statistics were provided regarding the numbers of requests for due process hearings, requests that involved private placements, and actual hearings held over the past few years.

D. Patrick Lacy, Jr. - Special Counsel, Virginia School Boards Association (VSBA)
Mr. Lacy conveyed that the VSBA, made up of public educators, is opposed to the Grant Program and noted that the chief concern is the unfairness of appropriating money to allow students to attend private schools, when there is currently inadequate funding available for the public schools. He emphasized that Congress only funds 18% of the mandated services required by federal law. Since funding falls significantly short of the 40% promised, the state must pick up the difference for the federally mandated services. The VSBA contends that the proposed Grant Program undermines the available public school special education programs and current laws. The Grant Program may also expose school divisions to the liability of paying tuition in excess of the appropriated $10,000 per student, per year.

Public Comment

Citizens opposed to the Grant Program emphasized that the federal system is working and insisted that the legislature fix problems in the public school system before funneling state money to private schools. Speakers against the legislation noted that in the bill the term "dissatisfaction" is not qualified and that the definition of disability appears too broad.

Citizens in favor of the measure included parents who felt that $10,000 would make a difference in a decision whether or not to send their children to private schools. They also shared their due process hearing experiences and difficulties.

Work Plan

The second meeting of the special subcom-mittee was planned and held on September 20, 2006, in Richmond, and consisted of a work session only. Chairman Lambert encouraged the bills patron to continue to amend the legislation based on the concerns of the various parties. A summary of the meeting follows.

September 20, 2006

Work Session

The primary purpose of the second meeting of the special subcommittee was to consider suggested amendments offered by the interested parties. The VDOE and Pat Lacy of the VSBA proposed all of the amendments discussed during the work session. The VDOE proposed amendments to clarify that a school division, outside of the student's division of residence, is not required under any circumstances to accept the student for admission. If the school division does accept the student, however, it must not charge tuition. The accepting school division must also report the student in the fall enroll-ment and receive payment in accordance with the provisions of the appropriation act.

The VDOE also proposed additions to the section directing the Board of Education to promulgate regulations, which include:

• Establishment of a process for verifying the student's initial acceptance, continued enrollment, and attendance at a private school.
• A process for determining a student's eligibility and approval of grants, in order to ensure that each participating student meets statutory and regulatory requirements.

Three amendments were accepted by the special subcommittee from the VSBA. Two proposed amendments clarify that parents, not the school divisions, are required to provide the student's transportation to a private school under the program or to another public school in an adjacent division if that option is chosen. The third amendment clarifies that in the statement requesting a grant, parents must acknowledge that the public school has offered or imple-mented an IEP that is reasonably calculated to provide educational benefit to the student. The subcommittee did not adopt the proposed amendments relating to teacher credentials or Standards of Learning (SOL) tests. Under the bill, if the parent of a student placed in a private school under the Grant Program wishes that the student take the SOL tests, the school must accommodate the request. The proposal that private schools be required to employ teachers in compliance with the Licensure Regulations for School Personnel in order to be eligible to participate in the Grant Program was not adopted. The members requested additional information concerning the current licensure regulations for private day schools for students with disabilities when SB 545 is heard by the full committee of Senate Education and Health.

Final Recommendation

The special subcommittee recommended to the full committee that SB 545 as amended be reported to the Senate for consideration.

Chairman:
The Hon. Benjamin J. Lambert, III

For information, contact:
Nikki Seeds and Brenda Edwards, DLS Staff

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