Virginia Administrative Code › Title 8 - EDUCATION › Agency 20 - STATE BOARD OF EDUCATION › Chapter 671 - REGULATIONS GOVERNING THE OPERATION OF PRIVATE SCHOOLS FOR STUDENTS WITH DISABILITIES › Section 8VAC20-671-10 - Definitions

Current through Register Vol. 40, No. 24, July 15, 2024
The following words and terms when used in this chapter shall
				  have the following meanings unless the context clearly indicates
				  otherwise:
"504 Plan" means a written plan required under § 504 of
				  the Rehabilitation Act of 1973 (29 USC §
										701 et seq.), as amended. A student's 504
				  Plan details modifications, accommodations, and services that are needed for
				  the student with a disability to participate in and enjoy the benefits of
				  school programs at the same level as his peers without disabilities.
"Applicant" means the person, partnership, corporation, or
				  association that has completed and submitted an application to the department
				  for approval for a license to operate a school for students with disabilities
				  in Virginia.
"Autism" means a developmental disability significantly
				  affecting verbal and nonverbal communication and social interaction, generally
				  evident before age three that adversely affects a child's educational
				  performance. Other characteristics often associated with autism are engagement
				  in repetitive activities and stereotyped movements, resistance to environmental
				  change or change in daily routines, and unusual responses to sensory
				  experiences. Autism does not apply if a child's educational performance is
				  adversely affected primarily because the child has an emotional disturbance. A
				  child who manifests the characteristics of autism after age three could be
				  identified as having autism if the criteria in this definition are
				  satisfied.
"Aversive stimuli" means any action used to punish a student
				  or to eliminate, reduce, or discourage the problem behavior by use of any of
				  the following or any other actions that are painful, humiliating, degrading, or
				  abusive:
1. Noxious odors and tastes.
2. Water and other mists or sprays.
3. Blasts of air.
4. Corporal punishment as defined in § 22.1-279.1 of the
				  Code of Virginia.
5. Verbal and mental abuse.
6. Placement of a student alone in a room, where the door is
				  locked or held shut and the student is prevented from leaving the room.
7. Forced exercise where:
a. The student's behavior is related to his
				  disability;
b. The exercise would have a harmful effect on the student's
				  health; or
c. The student's disability prevents participation in
				  activities.
8. Deprivation of necessities, including:
a. Food or liquid at a time when it is customarily
				  served;
b. Medication; or
c. Use of restroom.
"Behavioral intervention plan" means a plan that utilizes
				  positive behavioral interventions and supports to address (i) behaviors that
				  interfere with the learning of students with disabilities or with the learning
				  of others or (ii) behaviors that require disciplinary action.
"Board" means the State Board of Education.
"Business day" means Monday through Friday, 12 months of the
				  year, exclusive of federal and state holidays (unless holidays are specifically
				  included in the designation of business days).
"Calendar days" means consecutive days, inclusive of
				  Saturdays and Sundays. Whenever any period of time fixed by this chapter shall
				  expire on a Saturday, Sunday, or federal or state holiday, the period of time
				  for taking such action under this chapter shall be extended to the next day
				  that is not a Saturday, Sunday, or federal or state holiday.
"Complaint" means an accusation that a school has violated
				  one or more of the requirements of this chapter or other applicable
				  regulation.
"Consent" means:
1. The parent or eligible student has been fully informed of
				  all information relevant to the activity for which consent is sought in the
				  parent's or eligible student's native language or other mode of
				  communication;
2. The parent or eligible student understands and agrees in
				  writing to the carrying out of the activity for which consent is sought, and
				  the consent describes that activity and lists the records (if any) that will be
				  released and to whom; and
3. The parent or eligible student understands that the
				  granting of consent is voluntary on the part of the parent or eligible student
				  and may be revoked any time.
If a parent or eligible student revokes consent, that
				  revocation is not retroactive (i.e., it does not negate an action that has
				  occurred after the consent was given and before the consent was revoked.)
				  Revocation ceases to be relevant after the activity for which consent was
				  obtained was completed.
The meaning of the term "consent" is not the same as the
				  meaning of the term "agree" or "agreement." "Agree" or "agreement" refers to an
				  understanding between the parent or eligible student and the school about a
				  particular matter and as required in this chapter. There is no requirement that
				  an agreement be in writing, unless stated in this chapter. The school should
				  document its agreement.
"Controlled substance" means a drug or other substance
				  identified under Schedule I, II, III, IV, or V of the Controlled Substances
				  Act,
				  21 USC §
										812(c).
"Corrective action plan" means the school's plan of action to
				  correct a finding of noncompliance applicable to this chapter or other
				  applicable regulations. The plan must identify specific timelines and the
				  person responsible for implementation.
"Deaf-blindness" means simultaneous hearing and visual
				  impairments, the combination of which causes such severe communication and
				  other developmental and educational needs that they cannot be accommodated in
				  special education programs solely for children with deafness or children with
				  blindness.
"Deafness" means a hearing impairment that is so severe that
				  the child is impaired in processing linguistic information through hearing,
				  with or without amplification, that adversely affects the child's educational
				  performance.
"Department" means the Virginia Department of
				  Education.
"Developmental delay" means a disability affecting a child
				  age two by September 30 through six, inclusive:
1. Who (i) is experiencing developmental delays, as measured
				  by appropriate diagnostic instruments and procedures, in one or more of the
				  following areas: physical development, cognitive development, communication
				  development, social or emotional development, or adaptive development; or (ii)
				  has an established physical or mental condition that has a high probability of
				  resulting in developmental delay;
2. The delay is not primarily a result of cultural factors,
				  environmental or economic disadvantage, or limited English proficiency;
				  and
3. The presence of one or more documented characteristics of
				  the delay has an adverse effect on educational performance and makes it
				  necessary for the student to have specially designed instruction to access and
				  make progress in the general educational activities for this age group.
"Disability category" means a listing of special education
				  eligibility classifications for students served including: autism,
				  deaf-blindness, developmental delay, emotional disability, hearing impairment
				  (including deafness), intellectual disability, multiple disabilities,
				  orthopedic impairment, other health impairment, specific learning disability,
				  speech or language impairment, traumatic brain injury, and visual impairment
				  (including blindness).
"Education records" means those records that are directly
				  related to a student and maintained by the school or by a party acting for the
				  school. Education records may be recorded in any manner including, but not
				  limited to, handwriting, print, computer media, video or audiotape, film,
				  microfilm, or microfiche. Education records include discipline and medical
				  records. Education records include electronic exchanges between school
				  personnel and the parent regarding matters associated with the child's
				  educational program.
"Eligible student" means a student who has reached 18 years
				  of age.
"Emotional disability" or "emotional disturbance" means a
				  condition exhibiting one or more of the following characteristics over a long
				  period of time and to a marked degree that adversely affects a child's
				  educational performance:
1. An inability to learn that cannot be explained by
				  intellectual, sensory, or health factors;
2. An inability to build or maintain satisfactory
				  interpersonal relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal
				  circumstances;
4. A general pervasive mood of unhappiness or depression;
				  or
5. A tendency to develop physical symptoms or fears
				  associated with personal or school problems.
Emotional disability or emotional disturbance includes
				  schizophrenia. The term does not apply to children who are socially
				  maladjusted, unless it is determined that they have an emotional disturbance or
				  emotional disability as defined in this section.
"Funding agency" means a community policy and management team
				  under the Children's Services Act, Chapter 52 (§ 2.2-5200 et seq.) of
				  Title 2.2 of the Code of Virginia; local school division; or local department
				  of social services.
"Guaranty instrument" means a surety bond, irrevocable letter
				  of credit, or certificate of deposit.
"Hearing impairment" means an impairment in hearing in one or
				  both ears, with or without amplification, whether permanent or fluctuating,
				  that adversely affects a child's educational performance but that is not
				  included under the definition of deafness in the Regulations Governing Special
				  Education Programs for Children with Disabilities in Virginia
				  (8VAC20-81).
"Illegal drug" means a controlled substance or a prescription
				  drug not prescribed for the person but does not include a controlled substance
				  that is legally possessed or used under the supervision of a licensed health
				  care professional or that is legally possessed or used under any other
				  authority under the Controlled Substances Act,
				  21 USC §
										812(c), or under any other
				  provision of federal law.
"Individualized Education Program" or "IEP" means a written
				  statement for a child with a disability that is developed, reviewed, and
				  revised at least annually in a team meeting in accordance with the Regulations
				  Governing Special Education for Children with Disabilities in Virginia
				  (8VAC20-81). The IEP specifies the individual educational needs of the child
				  and what special education and related services are necessary to meet the
				  child's educational needs.
"Individualized Instruction Plan" or "IIP" means a written
				  statement for a child who is privately placed or for a child who has not been
				  determined eligible for special education services that is developed, reviewed,
				  and revised at least annually in a team meeting that includes the parent and
				  student when appropriate. The IIP specifies the student's academic level,
				  course of study, individual educational needs, and the educational services the
				  child will receive.
"Intellectual disability" means the definition formerly known
				  as "mental retardation" and means significantly subaverage general intellectual
				  functioning, existing concurrently with deficits in adaptive behavior and
				  manifested during the developmental period that adversely affects a child's
				  educational performance.
"Licensee," also known as the sponsor, means the person,
				  partnership, corporation, or association to whom a license is issued and who is
				  legally responsible for compliance with this chapter.
"License to operate" or "license" means a document issued by
				  the state Superintendent of Public Instruction that authorizes approval to
				  operate a school for students with disabilities.
"Mechanical restraint" means the use of any device or
				  equipment to restrict a student's freedom of movement. This term does not
				  include devices implemented by trained school personnel or utilized by a
				  student that have been prescribed by an appropriate medical or related services
				  professional and are used for the specific and approved purposes for which such
				  devices were designed, such as:
1. Adaptive devices or mechanical supports used to achieve
				  proper body position, balance, or alignment to allow greater freedom of
				  mobility than would be possible without the use of such devices or mechanical
				  supports;
2. Vehicle safety restraints when used as intended during the
				  transport of a student in a moving vehicle;
3. Restraints for medical immobilization; or
4. Orthopedically prescribed devices that permit a student to
				  participate in activities without risk of harm.
"Multiple disabilities" mean simultaneous impairments (such
				  as intellectual disability with blindness or intellectual disability with
				  orthopedic impairment), the combination of which causes such severe educational
				  needs that they cannot be accommodated in special education programs solely for
				  one of the impairments. The term does not include deaf-blindness.
"Orthopedic impairment" means a severe orthopedic impairment
				  that adversely affects a child's educational performance. The term includes
				  impairments caused by congenital anomaly, impairments caused by disease (e.g.,
				  poliomyelitis, bone tuberculosis, etc.), and impairments from other causes
				  (e.g., cerebral palsy, amputations, and fractures or burns that cause
				  contractures).
"Other health impairment" means having limited strength,
				  vitality, or alertness, including a heightened alertness to environmental
				  stimuli, that results in limited alertness with respect to the educational
				  environment, that is due to chronic or acute health problems such as asthma,
				  attention deficit disorder or attention deficit hyperactivity disorder,
				  diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia,
				  nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome, and that
				  adversely affects a child's educational performance.
"Paraprofessional," also known as paraeducator, means an
				  appropriately trained employee who assists and is supervised by qualified
				  professional staff in meeting the requirements of this chapter.
"Parent" means:
1. A person who is:
a. A biological or adoptive parent of a child;
b. A foster parent, even if the biological or adoptive
				  parent's rights have not been terminated, but subject to subdivision 3 of this
				  definition;
c. A guardian generally authorized to act as the child's
				  parent or make educational decisions for the child (but not the Commonwealth if
				  the child is a ward of the Commonwealth);
d. An individual acting in the place of a biological or
				  adoptive parent (including grandparent, stepparent, or other relative) with
				  whom the child lives, or an individual who is legally responsible for the
				  child's welfare; or
e. If no party qualified under subdivisions 1 a through 1 d
				  of this definition can be identified, or those parties are unwilling to act as
				  parent, a surrogate parent who has been appointed in accordance with
				  8VAC20-81-220.
2. The biological or adoptive parent, when attempting to act
				  as the parent pursuant to this section and when more than one party is
				  qualified under subdivision 1 of this definition to act as a parent, must be
				  presumed to be the parent for purposes of this section unless the biological or
				  adoptive parent has had his residual parental rights and responsibilities
				  terminated pursuant to § 16.1-277.01, 16.1-277.02, or 16.1-283 of the Code
				  of Virginia or a comparable law in another state.
3. The local school division shall provide written notice to
				  the biological or adoptive parents at their last known address that a foster
				  parent is acting as the parent pursuant to this section, and the local school
				  division is entitled to rely upon the actions of the foster parent pursuant to
				  this section until such time that the biological or adoptive parent attempts to
				  act as the parent.
4. If a judicial decree or order identifies a specific person
				  among subdivisions 1 a through 1 e of this definition to act as the "parent" of
				  a child or to make educational decisions on behalf of a child, then such person
				  shall be determined to be the "parent" for purposes of the special education
				  identification, evaluation, and placement of a child and the provision of a
				  free appropriate public education to a child.
"Pat down" means a thorough external body search of a clothed
				  student.
"Personally identifiable information" means information that
				  includes, but is not limited to:
1. The student's name, the child's parent, or other family
				  member;
2. The address of the child;
3. A personal identifier, such as the child's social security
				  number or student number; or
4. A list of personal characteristics that would make the
				  student's identity easily traceable.
"Pharmacological restraints" means a drug or medication used
				  on a student to control behavior or restrict freedom of movement that is not
				  (i) prescribed by a licensed physician or other qualified health professional
				  acting under the scope of the professional's authority for the standard
				  treatment of a student's medical or psychiatric condition and (ii) administered
				  as prescribed by the licensed physician or other qualified health professional
				  acting under the scope of the professional's authority.
"Physical restraint" means the use of approved physical
				  interventions or "hands-on" holds by trained staff to prevent a student from
				  moving his body to engage in a behavior that places him or others at risk of
				  physical harm. Physical restraint does not include:
1. Briefly holding a student in order to calm or comfort the
				  student; or
2. Holding a student's hand or arm to escort the student
				  safely from one area to another.
"Placing agency" means the community policy and management
				  team under the Children's Services Act, Chapter 52 (§ 2.2-5200 et seq.) of
				  Title 2.2 of the Code of Virginia; the local school division; or the local
				  department of social services.
"Privately placed student" means a student placed in a
				  private school for students with disabilities by the parent.
"Publicly placed student" means a student placed in a private
				  school for students with disabilities by a local school division, family
				  assessment and planning team under the Children's Services Act, or court
				  order.
"Qualified personnel" or "qualified staff" means personnel
				  who have met the state-approved or state-recognized certification, licensing,
				  or other comparable requirement applicable to a specific discipline.
"Regular basis" means more than twice a month.
"Related services" means transportation and such
				  developmental, corrective, and other supportive services as are required to
				  assist a child with a disability to benefit from special education and includes
				  speech-language pathology and audiology services; interpreting services;
				  psychological services; physical and occupational therapy; recreation,
				  including therapeutic recreation; early identification and assessment of
				  disabilities in children; counseling services, including rehabilitation
				  counseling; orientation and mobility services and medical services for
				  diagnostic or evaluation purposes. Related services also include school health
				  services and school nurse services; social work services in schools; and parent
				  counseling and training. Related services do not include a medical device that
				  is surgically implanted including cochlear implants, the optimization of device
				  functioning (e.g., mapping), maintenance of the device, or the replacement of
				  that device. The list of related services is not exhaustive and may include
				  other developmental, corrective, or supportive services (such as artistic and
				  cultural programs, and art, music, and dance therapy, if they are required to
				  assist a child with a disability to benefit from special education).
"School" means a school for students with disabilities that
				  has a license to operate issued by the Superintendent of Public
				  Instruction.
"School for students with disabilities" or "schools" means a
				  privately owned and operated preschool, school, or educational organization, no
				  matter how titled, maintained, or conducting classes for the purpose of
				  offering instruction, for a consideration, profit or tuition, to persons
				  determined to have autism, deaf-blindness, developmental delay, a hearing
				  impairment including deafness, intellectual disability, multiple disabilities,
				  orthopedic impairment, other health impairment, an emotional disturbance, a
				  specific learning disability, a speech or language impairment, a traumatic
				  brain injury, or a visual impairment including blindness.
"Seclusion" means the confinement of a student alone in a
				  room from which the student is physically prevented from leaving.
"Serious incident" means:
1. Any accident or injury requiring medical attention by a
				  licensed physician;
2. Any illness that requires hospitalization;
3. Any runaway; or
4. Any event that affects, or potentially may affect, the
				  health, safety, or welfare of any student being served at the school or
				  school-related activity.
"Serious injury" means any injury resulting in bodily hurt,
				  damage, harm, or loss that requires medical attention by a licensed
				  physician.
"Special education" means specially designed instruction to
				  meet the unique needs of a child with a disability.
The term includes:
1. Speech-language pathology services or any other related
				  service, if the service is considered special education rather than a related
				  service under state standards;
2. Vocational education; and
3. Travel training.
"Specially designed instruction" means adapting, as
				  appropriate, to the needs of an eligible child under this chapter, the content,
				  methodology, or delivery of instruction to:
1. Address the unique needs of the child that result from the
				  child's disability; and
2. Ensure access of the child to the general curriculum so
				  that the child can meet the educational standards that apply to all children
				  within the jurisdiction of the local educational agency.
"Specific learning disability" means a disorder in one or
				  more of the basic psychological processes involved in understanding or in using
				  language, spoken or written, that may manifest itself in the imperfect ability
				  to listen, think, speak, read, write, spell, or do mathematical calculations,
				  including conditions such as perceptual disabilities, brain injury, minimal
				  brain dysfunction, dyslexia, and developmental aphasia. Specific learning
				  disability does not include learning problems that are primarily the result of
				  (i) visual, hearing, or motor disabilities; (ii) intellectual disabilities;
				  (iii) emotional disabilities; or (iv) environmental, cultural, or economic
				  disadvantage.
Dyslexia is distinguished from other learning disabilities
				  due to its weakness occurring at the phonological level. Dyslexia is a specific
				  learning disability that is neurobiological in origin. It is characterized by
				  difficulties with accurate or fluent word recognition and by poor spelling and
				  decoding abilities. These difficulties typically result from a deficit in the
				  phonological component of language that is often unexpected in relation to
				  other cognitive abilities and the provision of effective classroom instruction.
				  Secondary consequences may include problems in reading comprehension and
				  reduced reading experience that can impede growth of vocabulary and background
				  knowledge.
"Speech or language impairment" means a communication
				  disorder, such as stuttering, impaired articulation, expressive or receptive
				  language impairment, or voice impairment, that adversely affects a child's
				  educational performance.
"Standard precautions" mean universal precautions designed to
				  prevent transmission of HIV, hepatitis B virus (HBV), and other bloodborne
				  pathogens when providing first aid or health care. Standard precautions apply
				  to blood; all body fluids, secretions, and excretions except sweat, regardless
				  of whether or not they contain blood; nonintact skin; and mucous membranes. The
				  precautions are designed to reduce the risk of transmission of microorganisms
				  from both recognized and unrecognized sources of infection when providing first
				  aid or health care. Standard precautions include protective barriers such as
				  gloves, gowns, aprons, masks, or protective eye wear that can reduce the risk
				  of exposure with materials that may contain infectious microorganisms.
"Standards of Learning" or "SOL" means Virginia's rigorous
				  academic standards established by the Board of Education.
"Strip search" means a visual inspection of the body of a
				  student when that student's outer clothing or total clothing is removed, and
				  there is an inspection of the removed clothing. Strip searches are conducted
				  for the detection of contraband.
"Substantial compliance" means that while there may be
				  noncompliance with one or more regulations that represent minimum risk,
				  compliance clearly and obviously exists with most of the regulations as a
				  whole.
"Superintendent" means the state Superintendent of Public
				  Instruction.
"Teacher of record" means the teacher who is responsible for
				  the delivery of instruction. The teacher of record shall hold a license issued
				  by the Virginia Board of Education.
"Time-out" means assisting a student to regain control by
				  removing the student from his immediate environment to a different open
				  location until the student is calm or the problem behavior has subsided.
"Traumatic brain injury" means an acquired injury to the
				  brain caused by an external physical force or by other medical conditions,
				  including stroke, anoxia, infectious disease, aneurysm, brain tumors, and
				  neurological insults resulting from medical or surgical treatments, resulting
				  in total or partial functional disability or psychosocial impairment, or both,
				  that adversely affects a child's educational performance. Traumatic brain
				  injury applies to open or closed head injuries resulting in impairments in one
				  or more areas, such as cognition; language; memory; attention; reasoning;
				  abstract thinking; judgment; problem solving; sensory, perceptual, and motor
				  abilities; psychosocial behavior; physical functions; information processing;
				  and speech. Traumatic brain injury does not apply to brain injuries that are
				  congenital or degenerative or to brain injuries induced by birth trauma.
"Visual impairment including blindness" means an impairment
				  in vision that, even with correction, adversely affects a child's educational
				  performance. The term includes both partial sight and blindness.
"Volunteer" means any individual who of his own free will and
				  without compensation provides goods or services to the school.
"Virtual learning" means the delivery of instruction through
				  emerging technologies such as satellite, streaming video, or the
				  Internet.
Statutory Authority: § 22.1-16 of the Code of
					 Virginia.