COMMONWEALTH OF VIRGINIA
DEPARTMENT OF EDUCATION
P. O. BOX 2120
RICHMOND, VIRGINIA 23218-2120
SUPTS. MEMO. NO. 97
June 4, 1997

INFORMATIONAL

TO: Division Superintendents
FROM:
 
Richard T. La Pointe
Superintendent of Public Instruction
SUBJECT: Continued Service Provision for Properly Expelled or 
Long-Term Suspended Students with Disabilities

 
  Through Supts. Memo 65, April 11, you were notified of the
  favorable decision of the United States Fourth Circuit Court
  of Appeals in the case of Commonwealth v. Riley. The Court
  held that current state special education regulations may be
  followed in the discipline of students with disabilities. 
  Under these provisions, disciplinary procedures may be
  applied to properly expelled or long-term suspended students
  with disabilities in the same manner as they are applied to
  nondisabled students.  This includes cessation of services,
  if cessation is an option for nondisabled students. Because
  this case was decided, the Department will no longer assume
  responsibility for these special education students
  beginning with the 1997-98 school year.  Students who have
  been receiving direct service from the Department under
  Option II or Option III will continue to be served through
  the end of the current school year or until agreed-upon
  compensatory services have been completed.

  However, after the Commonwealth's victory in court, the
  United States House of Representatives, acting on May 13th,
  and the United States Senate, acting on May 14th, passed
  legislation (H.R. 5) which affects the disciplining of
  special education students.  Overall this new legislation
  reauthorizes the Individuals with Disabilities Education Act
  (IDEA), but it significantly impacts the disciplinary
  provisions in our special education regulations that were
  upheld by the Fourth Circuit Court of Appeals. 
  Specifically, free appropriate public education (FAPE) has
  been defined to include "children with disabilities who have
  been suspended or expelled from school."  This appears to
  prohibit cessation of services.  According to the
  Congressional Record, this change is effective upon
  enactment of the Act, which occurs when signed by the
  President.  The President has indicated that he will sign
  this bill on June 4, 1997.

  This is to advise you that, upon enactment of the IDEA
  reauthorization legislation, those students with
  disabilities who have been or will be suspended or expelled
  must continue to be provided FAPE. Those students currently
  being served locally or by the Department of Education would
  need to continue to receive services.  The fiscal
  responsibility for Option I students will revert to the
  respective locality on July 1, 1997.  Further, as of July 1,
  1997, administrative responsibility for the Option II and
  Option III students will revert to the respective
  localities.  Department staff will work with localities to
  fulfill the Department's fiscal obligation for services in
  the current IEP (through the end of the 1996-97 school
  year), including, when specified, compensatory services
  which may extend beyond July 1.  Department of Education
  records on the Option II and III students will be returned
  to school divisions by July 1, 1997.

  You are also advised that students with disabilities who
  were suspended or expelled since the Fourth Circuit decision
  and who are not currently receiving services are included in
  the IDEA provisions once enacted.  Anticipating a prompt
  enactment, we are advising parents of these developments and
  are indicating that someone from your division will be
  contacting them about IEP preparation for the 1997-98 school
  year.   We are also reminding parents of procedural
  safeguards (a copy of the letter to parents is attached).

  The reauthorization of IDEA results in many other procedural
  changes in the disciplining of students with disabilities,
  as well as changes in other areas of special education. 
  More detailed information will be forthcoming.  Your are
  encouraged to consult with your local school board attorney
  for guidance.

  Questions about this matter may be referred to H. Douglas
  Cox, Director, or Dr. Patricia Abrams, Associate Director,
  Office of Special Education and Student Services.  Mr. Cox
  may be reached at (804) 225-2402 or by e-mail at
  dougcox@pen.k12.va.us. Dr. Abrams may be reached at (804)
  225-2702 or by e-mail at pabrams@pen.k12.va.us.


  RTL:hdc

  Attachment:  A hard copy of this memo and its attachment
               will be sent to the superintendent's office


  Dear Parent:

     This is to provide you with important information
  concerning your child who has been served by the Virginia
  Department of Education while suspended or expelled from
  school. The United States House of Representatives, acting
  on May 13, and the United States Senate, acting on May 14,
  have passed a bill which reauthorizes the federal
  Individuals with Disabilities Act (IDEA).  We expect this
  bill to be signed into law within the next several weeks.

     Included in the new law is a provision that a free
  appropriate public education must be available to students
  with disabilities who have been suspended or expelled from
  school.  This action clarifies the intent of Congress with
  respect to the discipline of students with disabilities.
  Therefore, the responsibility for providing special
  education services to your child now reverts to your local
  school division.  The Virginia Department of Education will
  assume no further responsibility for continued services
  provision after the end of the current school year, or after
  the agreed-upon compensatory services have been completed,
  and will not prepare an individualized education program
  (IEP) for the 1997-98 school year.

     Your child's records will be returned to the local
  school division.  You should expect to hear from local
  officials about the preparation of an IEP for the coming
  school year. Enclosed is a document entitled "Parental
  Rights in Special Education" which contains a description of
  the procedural safeguards available to you.

     Questions about this matter should be referred to your
  child's case manager at the Virginia Department of Education
  or to the director of special education in your school
  division.

                         Sincerely,



                         H. Douglas Cox, Director
                         Office of Special Education and Student Services
 HDC:c