                                 CODE OF VIRGINIA

BOARD TO PREPARE SPECIAL EDUCATION PROGRAM FOR CHILDREN WITH DISABILITIES (§
22.1-214)

A. The Board of Education shall prepare and supervise the implementation by each
school division of a program of special education designed to educate and train
children with disabilities between the ages defined in &#xA7; 22.1-213 and may
prepare and place in operation such program for such individuals of other ages.
The program developed by the Board of Education shall be designed to ensure that
all children with disabilities have available to them a free and appropriate
education, including specially designed instruction to meet the unique needs of
such children. The program shall require (i) that the hearing of each disabled
child be tested prior to placement in a special education program and (ii) that
a complete audiological assessment, including tests that will assess inner and
middle ear functioning, be performed on each child who is deaf or hard of
hearing or who fails the test required in clause (i). The school boards of the
several school divisions, the Department for the Blind and Vision Impaired, the
Department for the Deaf and Hard-of-Hearing, the Department of Health, and other
state and local agencies that can or may be able to assist in providing
educational and related services shall assist and cooperate with the Board of
Education in the development of such program.

B. The Board of Education shall prescribe procedures to afford due process to
children with disabilities and their parents or guardians and to school
divisions in resolving disputes as to program placements, individualized
education programs, tuition eligibility and other matters as defined in state or
federal statutes or regulations. These procedures shall encourage the use of
mediation as an informal means of resolving such disputes. Mediation shall not,
however, be used to deny or delay the due process rights of parents or
guardians. The procedures shall require that all testimony be given under oath
or affirmation administered by the hearing officer.

C. The Board of Education may provide for final decisions to be made by a
hearing officer. The parents and the school division shall have the right to be
represented by legal counsel or other representative before such hearing officer
without being in violation of the provisions of &#xA7; 54.1-3904.

D. Any party aggrieved by the findings and decision made pursuant to the
procedures prescribed pursuant to subsections B and C may, within 180 days of
such findings and decision, bring a civil action in the circuit court for the
jurisdiction in which the school division is located. In any such action, the
court shall receive the records of the administrative proceedings, shall hear
additional evidence at the request of a party, and basing its decision on the
preponderance of the evidence, shall grant such relief as the court determines
appropriate.

D1. In any action brought pursuant to subsection D, the court, in its
discretion, may award reasonable attorney fees as part of the costs (i) to a
prevailing party who is the parent of a child with a disability; (ii) to a
prevailing party who is the Board of Education or a local school division
against the attorney of a parent who files a complaint or a subsequent cause of
action that is frivolous, unreasonable, or without foundation, or against the
attorney of a parent who continued to litigate after the litigation clearly
became frivolous, unreasonable, or without foundation; or (iii) to a prevailing
party who is the Board of Education or a local school division against the
attorney of a parent, or against the parent, if the parent&#8217;s complaint or
subsequent cause of action was presented for any improper purpose, such as to
harass, to cause unnecessary delay, or to needlessly increase the cause of
litigation.
			Attorney fees may not be awarded relating to any meeting of the
individualized education program (IEP) team unless such meeting is convened as a
result of an administrative proceeding or judicial action, or, at the discretion
of the State, for a mediation described in subsection B.

E. Whenever the Board of Education, in its discretion, determines that a school
division fails to establish and maintain programs of free and appropriate public
education that comply with regulations established by the Board, the Board may
withhold all special education moneys from the school division and may use the
payments that would have been available to such school division to provide
special education, directly or by contract, to eligible children with
disabilities in such manner as the Board considers appropriate.

F. The Board of Education shall supervise educational programs for children with
disabilities by other public agencies and shall ensure that the identification,
evaluation, and placement of children with disabilities and youth in education
programs by other public agencies, as appropriate, are consistent with the
provisions of the Board of Education&#8217;s special education regulations.

G. The Board of Education shall prescribe regulations to provide a range of
assessment procedures for the evaluation of children with disabilities. These
regulations shall include provision for parents to participate, if they so
request, in the consideration of the assessment components to be used. However,
such regulations shall not require any local school board to exceed the
requirements of federal law or regulations for the identification and evaluation
of children with disabilities.

HISTORY: Code 1950, § 22-10.4; 1974, c. 480; 1978, c. 386; 1980, cc. 559, 561;
1981, c. 7; 1982, c. 21; 1985, c. 207; 1990, c. 205; 1991, c. 518; 1994, c. 854;
1997, c. 54; 2007, cc. 33, 52; 2009, c. 468; 2010, c. 447; 2019, c. 288; 2021,
Sp. Sess. I, cc. 451, 452.