COMMONWEALTH OF VIRGINIA

DEPARTMENT OF EDUCATION

P.O. BOX 2120

RICHMOND, VIRGINIA 23218-2120

SUPTS. MEMO NO. 2

June 24, 2005

INTERPRETIVE

TO:

Division Superintendents

 

FROM:

Jo Lynne DeMary

Superintendent of Public Instruction

 

SUBJECT:

Requirements for: (1) Statute of Limitations for Appealing Hearing Officers Decisions; (2) Providing a Free Appropriate Public Education for Students with Disabilities Ordered by Juvenile Court Judges to be Placed in Group Homes

 

The Virginia Department of Education (VDOE) requested the Office of the Attorney General to provide guidance on the following two subjects.

 

I. Statute of Limitations for Appealing Hearing Officers Decisions in a State Circuit Court or Federal District Court Beginning July 1, 2005

 

The provisions of the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq., become effective July 1, 2005. Section 1415 (i)(2)(B)of the act establishes the following limitations period for appealing hearing officers decisions: The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this part, in such time as the state law allows.

 

8 VAC 20-80-76 O.1 states that: A decision by the hearing officer in any hearing, including an expedited hearing, shall be final and binding unless the decision is appealed by a party in a state circuit court within one year of the issuance of the decision or in a federal district court.

 

The Office of the Attorney General has advised VDOE that beginning July 1, 2005, the applicable statute of limitations period for filing such an appeal in federal district court is 90 calendar days of the issuance of the hearing officers decision, and one-year for filing such an appeal in a state circuit court.

 

VDOEs hearing officers will be advised to include this provision in their decisions beginning July 1, 2005.

 

II. Providing a Free Appropriate Public Education to Students with Disabilities Ordered by Juvenile Court Judges to be Placed in Group Homes

 

The Office of the Attorney General provided VDOE guidance as to a conflict between the Virginia Code and 8 VAC 20-80-40 B.10.a (2). Specifically, VDOE requested guidance on a situation where a student under the age of 18 with a disability, lives with his parents in School Division A. The local juvenile court judge ordered the student to be placed in a group home located in School Division B. The issue is which school division is responsible for providing a free appropriate public education to this student.

 

Virginia Code 22.1-215 states that:

 

Each school division shall provide free and appropriate education, including special education, for the children with disabilities residing within its jurisdiction in accordance with regulations of the Board of Education.

 

For the purposes of this section, children with disabilities, residing within its jurisdiction shall include: (i) those individuals of school age identified as appropriate to be placed in public school programs, who are residing in a state institution operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services located within the school division, or (ii) those individuals of school age who are Virginia residents and are placed and living in a foster care home or child-caring institution or group home located within the school division and licensed under the provisions of Chapter 17 (63.2-1700 et seq.) of Title 63.2 as a result of being in custody of a local department of social services or welfare or being privately placed, not solely for school purposes.

 

 

The Office of the Attorney General has advised VDOE that this section conflicts with 8 VAC 20-80-40 B.10.a(2), which states that in this instance the child is a resident of the division where the parent or parents reside for the purpose of determining residency of a child with a disability. The Office of the Attorney General has further advised VDOE that when a state statute conflicts with a state regulation, the statute governs.

 

In this instance, therefore, School Division B is responsible for the provision of a free appropriate public education.

 

Please share this information on these two requirements with your respective school board attorney and special education administrator.

 

If you have any questions about these requirements, please do not hesitate to contact H. Douglas Cox, assistant superintendent for special education and student services, at (804) 225-3252; Doug.Cox@doe.virginia.gov, or Judy Douglas, director of dispute resolution and administrative services, at (804) 225-2771; Judy.Douglas@doe.virginia.gov.

 

JLD/HDC/cp