J.V. v. Stafford Cnty. Sch. Bd., Record No. 0729-16-4

• Decision Date: 15 November 2016
• Docket Number: Record No. 0729-16-4
• Citation: 792 S.E.2d 286,67 Va.App. 21
• Parties: J.V., A Minor, By Her Mother and Next Best Friend, Anette H. Veldhuyzen v. Stafford County School Board
• Court: Virginia Court of Appeals

67 Va.App. 21

792 S.E.2d 286

J.V., A Minor, By Her Mother and Next Best Friend, Anette H. Veldhuyzen

v.Stafford County School Board

Record No. 0729-16-4

Court of Appeals of Virginia, Alexandria.

NOVEMBER 15, 2016

Anette H. Veldhuyzen, pro se, for appellant.

Pakapon Phinyowattanachip (Patrick T. Andriano ; Reed Smith, LLP, on brief), Richmond, for appellee.

Present: Judges Petty, O'Brien and Russell

OPINION BY JUDGE WILLIAM G. PETTY

J.V., by her mother and next friend, argues that the circuit court erred when it granted a plea in bar by Stafford County School Board ("the School Board") on the basis that the parent's lack of consent to the eligibility determination precluded J.V. from qualifying as a "child with a disability" within the meaning of the Individuals with Disabilities Education Act.¹ Because we hold the Act does not require a parent to consent to the eligibility determination in order for the child to be entitled to a free and appropriate public education, we reverse the circuit court's decision and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND VIRGINIA'S REGULATORY FRAMEWORK

The Individuals with Disabilities Education Act seeks "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). Further, the Act aims "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(B). The Act requires that a free and appropriate public education "be ‘tailored to the unique needs of the [disabled] child by means of an "individualized educational program." ’ " D.B. v. Bedford Cty. Sch. Bd., 708 F.Supp.2d 564, 568 (W.D. Va. 2010) (quoting Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 181–82, 102 S.Ct. 3034, 3038, 73 L.Ed.2d 690 (1982) ). The Act "establishes certain procedural safeguards to ensure the provision of FAPE [free and appropriate public education] by a state educational agency or [local educational agency].^{[2 ]}One such safeguard is the opportunity for an impartial due process hearing." Id.; Sch. Bd. v. Rose, 133 F.Supp.3d 803, 818 (E.D. Va. 2015) ("If parents believe that an IEP [individualized education program] is not appropriate, they may seek an administrative ‘impartial due process hearing.’ " (quoting Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 532, 163 L.Ed.2d 387 (2005) )).

The Act authorizes federal funds to assist state and local agencies in educating children with disabilities, but conditions receipt of those funds upon a state's compliance with the requirements of the Act. Loudoun Cty. Sch. Bd. v. Commonwealth Bd. of Educ., 45 Va.App. 466, 469, 612 S.E.2d 210, 212 (2005) ("[The] General Assembly has enacted statutes to ensure compliance with the [Act's] requirements."); seeCode §§ 22.1-213 to 22.1-221 ; see alsoCode § 22.1-214 (requiring the Virginia Board of Education to prepare and supervise a program of special education by each school division that will comply with the Act's requirements). The Virginia Board of Education (the "agency") developed a comprehensive and detailed regulatory program to ensure that children with disabilities within the Commonwealth have available to them a free and appropriate public education and to ensure that local school divisions comply with the Act. See generally 8 VAC 20-81. To understand the issue before us, a brief overview of some of these regulations is helpful.

Determination of eligibility for special education services begins with an initial evaluation of the child. The local school must "[s]ecure informed consent from the parent(s) for the evaluation." 8 VAC 20-81-60(B)(1)(e) ; see also8 VAC 20-81-60(B)(2)(c) ("The local school division shall make reasonable efforts to obtain parental consent for an initial evaluation to determine whether the child is a child with a disability."). "Upon completion of the administration of assessments and other evaluation materials ... a group of qualified professionals and the parent(s) of the child shall determine whether the child is, or continues to be, a child with a disability and the educational needs of the child." 8 VAC 20-81-80(C). If the eligibility group determines that the child has a disability that requires special education, the school must develop an individualized education program calculated to provide the child with a free and appropriate public education. Id.

The eligibility determination is made on an individual basis by a group including, among others, the special education administrator, the parent(s), a special education teacher, and at least one person qualified to conduct individual diagnostic tests. 8 VAC 20-81-80(C)(2)(b). The eligibility group must develop "a written summary that consists of the basis for making its determination as to the eligibility of the child for special education and related services." 8 VAC 20-81-80(D)(9). Although the regulations urge the eligibility group to "work toward consensus[,] [i]f the group does not reach consensus and the decision does not reflect a particular member's conclusion, then the group member shall submit a written statement presenting that member's conclusions." 8 VAC 20-81-80(D)(7). The written summary, including the written statements from any member whose conclusion differs, must "be maintained in the child's scholastic record." 8 VAC 20-81-80(D)(9). Once the eligibility group determines that the child is eligible for special education and the written summary is completed, the "written summary shall be forwarded to the IEP [individualized education program] team, including the parent." 8 VAC 20-81-80(D)(10).

The individualized education program is the "primary vehicle for delivery of a FAPE [free and appropriate public education] to students with disabilities." G v. Fort Bragg Dependent Schs., 343 F.3d 295, 298 (4th Cir. 2003). Extensive regulations cover the development and implementation of the individualized education program. Of most relevance to the case before us are the requirements that the parent(s) be part of the individualized education program team (8 VAC 20-81-110 ), that the parent consent to the initial provision of services 8 VAC 20-81-170(E)(4) ), and that the parent may initiate a due process hearing before an independent hearing officer if the parent believes the individualized education program is inadequate to provide the child with a free and appropriate public education (8 VAC 20-81-210 ).

While placing upon the School Board the responsibility of providing a free and appropriate public education for a child with disabilities, the Act also strongly encourages parental participation in the decision-making process related to a child's education. SeeRose, 133 F.Supp.3d at 818 ("[T]he IDEA [Individuals with Disabilities Education Act] provides a range of procedural safeguards to ensure parental participation in the process." (quoting Fitzgerald v. Fairfax Cty. Sch. Bd., 556 F.Supp.2d 543, 551 (E.D. Va. 2008) )). To that end, in addition to parental participation as a member of the eligibility determination group and the individualized education program team, the regulations require the school to "make reasonable efforts to obtain informed parental consent for an initial evaluation and the initial provision of special education and related services." 8 VAC 20-81-60 ; 8 VAC 20-81-170(E)(7) ; see also8 VAC 20-81-170(E)(6) ("Consent for initial evaluation may not be construed as consent for initial provision of special education and related services.").

All the Virginia regulations discussed so far mirror the federal regulations promulgated to implement the Act. See generally 34 C.F.R. § 300. The federal regulations additionally allow a State to "require parental consent for other services and activities under this part [Assistance to States for the Education of Children with Disabilities] if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE [free appropriate public education]." 34 C.F.R. § 300.300(d)(4). Virginia has added to its regulations several provisions requiring parental consent that are not found in the federal regulatory framework. The Virginia regulation pertinent to this case requires parental consent before "an initial eligibility determination or any change in categorical identification." 8 VAC 20-81-80(D)(8) ; 8 VAC 20-81-170(E)(1)(b).³

B. DETERMINATION THAT J.V. IS A CHILD WITH A DISABILITY

J.V. entered kindergarten in Stafford County in fall of 2013. J.V.'s parent contacted the school to request that J.V. be evaluated for special education. See8 VAC 20-81-60(A) ("All children ... who are suspected of having a disability, shall be referred to the special education administrator or designee, who shall initiate the process of determining eligibility for special education and related services. ... Referrals may be made by ... a parent...."). J.V.'s parent participated as a member of the eligibility determination group, pursuant to 8 VAC 20-81-80(C)(2)(b). The group concluded on October 9, 2013, that J.V. was a child with a disability, with the primary disability being intellectual. See8 VAC 20-81-80(D)(9) ("The eligibility group shall have a written summary that consists of the basis for making its determination as to the eligibility of the child for special education and related services."); see alsoCode § 22.1-213 (listing types of disability). The group did not reach consensus, as urged by 8 VAC 20-81-80(D)(7), because the parent disagreed that the intellectual disability was J.V.'s primary disability. The school asked for the parent's consent on an ...