008-10 Age of Eligibility

Are local educational agencies (LEAs) required to serve children below the age of 2?

Conversely, are LEAs required to serve children after they reach the age of 22?

The Virginia Regulations define "Age of eligibility" as:

…all eligible children with disabilities who have not graduated with a standard or advanced studies high school diploma who, because of such disabilities, are in need of special education and related services, and whose second birthday falls on or before September 30, and who have not reached their 22nd birthday on or before September 30 (two to 21, inclusive) in accordance with the Code of Virginia. A child with a disability whose 22nd birthday is after September 30 remains eligible for the remainder of the school year.
(8 VAC 20-81-10)

Children below the age of 2

An LEA is obligated to provide FAPE to a child who is not yet two if:

the child has been referred and found eligible for special education and related services,
an IEP has been developed, and
the child will be age 2 by September 30 of the current school year.

In other words, even though on the first day of school the child is not yet 2, the child is entitled to receive services in accordance with the IEP beginning on the first day of the school year. This requirement is in keeping with the Virginia Regulations that direct each LEA to have an IEP in effect for each child with a disability within its jurisdiction at the beginning of each school year. (8 VAC 20-81-110 B.1).

Practice Tip: It is critical that for children who are being served by the Part C program and whose second birthdays fall before September 30, school personnel work with the Part C program to ensure that referrals are made in a manner that gives the school division sufficient time to determine eligibility and, if needed, to develop an IEP before the start of school. For those LEAs whose school year begins during the first week of September, the process for evaluation and eligibility (65 business days) and IEP development (30 days) would require a referral from the Part C program during the first part of April. Of course, compressing these timelines is permissible and preferred in ensuring completion of the process in advance of the opening of school.

Children who turn 22 years of age

As indicated in the definition, a student who turns 22 after September 30, is entitled to services for the remainder of the school year. In other words, if a student is 21 on September 30, turning 22 on November 1, the student has the right to continue to receive services in accordance with the IEP for the remainder of the school year. In addition, students who turn 22 after September 30 are eligible for Extended School Year (ESY) services during the current school year and/or during the summer following the school year in which the child turned 22, if determined appropriate by the student’s IEP team.

Practice Tip: For students who are in their last year of school, it is expected that the student’s IEP include services in accordance with the regulations governing secondary transition. It is essential that school personnel finalize steps to help the student transition into the next setting. Although students with disabilities who do not graduate with a standard or advanced studies diploma, and have not turned 22, remain entitled to special education and related services, this does not mean that the services must be provided at a high school. Instead, the IEP team certainly can identify and consider whether other settings are more appropriate for providing special education services to the student.

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