Bill Text: VA HB1381 | 2021 | Regular Session | Prefiled
Bill Title: Special education; due process hearings, nonattorney representatives.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2020-12-04 - Left in Courts of Justice [HB1381 Detail]
Download: Virginia-2021-HB1381-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§22.1-214 and 22.1-214.2 of the Code of Virginia are amended and reenacted as follows:
§22.1-214. Board to prepare special education program for children with disabilities.
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 accompanied and advised by
legal counsel or other representative by any nonattorney with special
knowledge or training with respect to the needs of children with disabilities
before such hearing officer without being in violation
of the provisions of . It
constitutes the practice of law without being authorized or licensed to do so
as prohibited by §54.1-3904 when any
nonattorney drafts or submits pleadings, motions, or briefs;
presents evidence; makes any argument, including any argument relating to any
law or regulation; or questions witnesses on behalf of any parent
or student in any proceeding before such a hearing officer.
D. The Board shall adopt regulations to establish (i) licensure requirements, including minimum training and qualification requirements; (ii) a code of professional conduct; and (iii) a mechanism for the review and resolution of complaints for nonattorneys who accompany and advise parties pursuant to subsection C.
E. 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. F. In any action brought
pursuant to subsection D E, 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 that 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 that 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 Plan (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. G. 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. H. 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 Board's special education
regulations.
G. I. 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.
§22.1-214.2. Definition of "supervise" as related to educational programs provided for or by Department of Behavioral Health and Developmental Services.
For the purposes of subsection F H 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.
