22.1-214 - Board to prepare special education program for children with disabilities. - Virginia Statutes

§ 22.1-214. Board to prepare special education program for children withdisabilities.

A. The Board of Education shall prepare and supervise the implementation byeach school division of a program of special education designed to educateand train children with disabilities between the ages defined in § 22.1-213and may prepare and place in operation such program for such individuals ofother ages. The program developed by the Board of Education shall be designedto ensure that all children with disabilities have available to them a freeand appropriate education, including specially designed instruction to meetthe unique needs of such children. The program shall require (i) that thehearing of each disabled child be tested prior to placement in a specialeducation program and (ii) that a complete audiological assessment, includingtests which will assess inner and middle ear functioning, be performed oneach child who is hearing impaired or who fails the test required in clause(i). The school boards of the several school divisions, the Department forthe Blind and Vision Impaired, the Department for the Deaf andHard-of-Hearing, the Department of Health and other state and local agencieswhich can or may be able to assist in providing educational and relatedservices shall assist and cooperate with the Board of Education in thedevelopment of such program.

B. The Board of Education shall prescribe procedures to afford due process tochildren with disabilities and their parents or guardians and to schooldivisions in resolving disputes as to program placements, individualizededucation programs, tuition eligibility and other matters as defined in stateor federal statutes or regulations. These procedures shall encourage the useof mediation as an informal means of resolving such disputes. Mediation shallnot, however, be used to deny or delay the due process rights of parents orguardians. The procedures shall require that all testimony be given underoath or affirmation administered by the hearing officer.

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

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

D1. In any action brought pursuant to subsection D, the court, in itsdiscretion, may award reasonable attorney fees as part of the costs (i) to aprevailing party who is the parent of a child with a disability; (ii) to aprevailing party who is the Board of Education or a local school divisionagainst the attorney of a parent who files a complaint or a subsequent causeof action that is frivolous, unreasonable, or without foundation, or againstthe attorney of a parent who continued to litigate after the litigationclearly became frivolous, unreasonable, or without foundation; or (iii) to aprevailing party who is the Board of Education or a local school divisionagainst the attorney of a parent, or against the parent, if the parent'scomplaint or subsequent cause of action was presented for any improperpurpose, such as to harass, to cause unnecessary delay, or to needlesslyincrease the cause of litigation.

Attorney fees may not be awarded relating to any meeting of theIndividualized Education Plan (IEP) Team unless such meeting is convened as aresult of an administrative proceeding or judicial action, or, at thediscretion of the State, for a mediation described in subsection B.

E. Whenever the Board of Education, in its discretion, determines that aschool division fails to establish and maintain programs of free andappropriate public education which comply with regulations established by theBoard, the Board may withhold all special education moneys from the schooldivision and may use the payments which would have been available to suchschool division to provide special education, directly or by contract, toeligible children with disabilities in such manner as the Board considersappropriate.

F. The Board of Education shall supervise educational programs for childrenwith disabilities by other public agencies and shall ensure that theidentification, evaluation and placement of children with disabilities andyouth in education programs by other public agencies, as appropriate, areconsistent with the provisions of the Board of Education's special educationregulations.

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