Title of Regulation: 8VAC20-40. Regulations Governing Educational Services for Gifted Students (amending 8VAC20-40-10, 8VAC20-40-20, 8VAC20-40-40, 8VAC20-40-60, 8VAC20-40-70; adding 8VAC20-40-55; repealing 8VAC20-40-30, 8VAC20-40-50).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Effective Date: August 4, 2010.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy & Communications, Department of Education, P.O. Box 2120, 101 North 14th Street, 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Summary:

The amendments (i) require that school divisions with identification in general intellectual aptitude provide service options "continuously and sequentially" from kindergarten through twelfth grade; (ii) stipulate that identification in a specific academic aptitude area may occur as assessment instruments exist to support identification; (iii) require that school divisions that elect to identify students in one or more specific academic aptitude areas shall provide continuous and sequential service options through twelfth grade; (iv) require that school divisions post their plan for the education of gifted students on their websites and have printed copies of the plan available for citizens who do not have online access; (v) require that the identification and placement committee determine the eligibility status of each student referred for the division's gifted education program and notify the parent or guardian of its decision within 90 instructional days of the receipt of a parent's or legal guardian's consent for assessment; (vi) require that requests filed by parents or legal guardians to appeal any action of the identification and placement committee shall be filed within 10 instructional days of receipt of notification of the action by the division; (vii) reduce the minimum number of criteria used for the identification of gifted students from four to three; (viii) require that school divisions must assure that the selected and administered testing and assessment materials have been evaluated by the developers for cultural, racial, and linguistic biases; (ix) explicitly state that specific academic aptitude areas include English, history and social science, mathematics, or science; (x) require that school divisions provide professional development for instructional personnel who deliver services within the gifted education program based on the competencies specified for the gifted education add-on endorsement; (xi) require that each school board approve a comprehensive plan for the education of gifted students that includes the components identified in the regulations; (xii) require that each school board submit a comprehensive plan for the education of gifted students to the Department of Education for technical review on a schedule determined by the department; and (xiii) clarify that current funding for the education of gifted students is governed by the appropriation act.

Final regulations were published the Virginia Register of Regulations on February 1, 2010 (26:11 VA.R. 1636-1642 February 1, 2010). A notice of suspension of the regulatory process was published on March 29, 2010 (26:15 VA.R 2291-2292 March 29, 2010). The notice included an announcement of an extended 30-day comment period.

The majority of comments from the extended 30-day comment period addressed disproportionate representation of minority and low socioeconomic groups in gifted programs throughout the Commonwealth. The following changes in 8VAC20-40-60 are the result of public comments during the suspension period. School divisions shall (i) provide an operational definition of giftedness that is applicable to their local program for gifted education, (ii) use information from the review of program effectiveness to develop a statement of program goals and objectives intended to support the achievement of equitable representation of students in gifted education programs, and (iii) provide professional development based on the teacher competencies outlined in 8VAC20-542-310 related to gifted education. In addition, the annual review of program effectiveness shall include the review of program procedures toward the achievement of equitable representation of students.

Part I
Applicability and Definitions

8VAC20-40-10. Applicability.

This chapter shall apply to all local school divisions in the Commonwealth, regarding their gifted education services for students from kindergarten through twelfth grade.

8VAC20-40-20. Definitions.

The words and terms, when used in this chapter, shall have the following meanings, unless the content context clearly indicates otherwise:

"Appropriately differentiated curricula" for gifted students refer to curricula designed in response to their cognitive and effective needs. Such curricula provide emphasis on both accelerative and enrichment opportunities for curriculum and instruction" means curriculum and instruction adapted or modified to accommodate the accelerated learning aptitudes of eligible or identified students in their areas of strength. Such curriculum and instructional strategies provide accelerated and enrichment opportunities that recognize gifted students' needs for (i) advanced content and pacing of instruction,; (ii) original research or production,; (iii) problem finding and solving,; (iv) higher level thinking that leads to the generation of products,; and (v) a focus on issues, themes, and ideas within and across areas of study. Such curriculum and instruction are offered continuously and sequentially to support the achievement of student outcomes, and provide support necessary for these students to work at increasing levels of complexity that differ significantly from those of their age-level peers.

"Eligible student" means a student who has been identified as gifted by the identification and placement committee for the school division's gifted education program.

"Gifted students" means those students in public elementary, middle, and secondary schools beginning with kindergarten through graduation twelfth grade whose abilities who demonstrate high levels of accomplishment or who show the potential for higher levels of accomplishment when compared to others of the same age, experience, or environment. Their aptitudes and potential for accomplishment are so outstanding that they require special programs to meet their educational needs. These students will be identified by professionally qualified persons through the use of multiple criteria as having potential or demonstrated abilities and who have evidence of high performance capabilities, which may include leadership, aptitudes in one or more of the following areas:

1. Intellectual General intellectual aptitude or aptitudes. Students with advanced aptitude or conceptualization whose development is accelerated beyond their age peers as demonstrated by advanced skills, concepts, and creative expression in multiple general intellectual ability or in specific intellectual abilities. Such students demonstrate or have the potential to demonstrate superior reasoning; persistent intellectual curiosity; advanced use of language; exceptional problem solving; rapid acquisition and mastery of facts, concepts, and principles; and creative and imaginative expression across a broad range of intellectual disciplines beyond their age-level peers.

2. Specific academic aptitude. Students with specific aptitudes in selected academic areas: mathematics; the sciences; or the humanities as demonstrated by advanced skills, concepts, and creative expression in those areas. Such students demonstrate or have the potential to demonstrate superior reasoning; persistent intellectual curiosity; advanced use of language; exceptional problem solving; rapid acquisition and mastery of facts, concepts, and principles; and creative and imaginative expression beyond their age-level peers in selected academic areas that include English, history and social science, mathematics, and or science.

3. Technical and practical arts Career and technical aptitude. Students with specific aptitudes in selected technical or practical arts as demonstrated by advanced skills and creative expression in those areas to the extent they need and can benefit from specifically planned educational services differentiated from those provided by the general program experience. Such students demonstrate or have the potential to demonstrate superior reasoning; persistent technical curiosity; advanced use of technical language; exceptional problem solving; rapid acquisition and mastery of facts, concepts, and principles; and creative and imaginative expression beyond their age-level peers in career and technical fields.

4. Visual or performing arts aptitude. Students with specific aptitudes in selected visual or performing arts as demonstrated by advanced skills and creative expression who excel consistently in the development of a product or performance in any of the visual and performing arts to the extent that they need and can benefit from specifically planned educational services differentiated from those generally provided by the general program experience. Such students demonstrate or have the potential to demonstrate superior creative reasoning and imaginative expression; persistent artistic curiosity; and advanced acquisition and mastery of techniques, perspectives, concepts, and principles beyond their age-level peers in visual or performing arts.

"Identification" is means the multistaged process of reviewing student data collected at the screening level and conducting further evaluation of student potential to determine the most qualified students for the specific gifted program available. finding students who are eligible for service options offered through the division's gifted education program. The identification process begins with a divisionwide screening component that is followed by a referral component, and that concludes with the determination of eligibility by the school division's identification and placement committee or committees. The identification process includes the review of valid and reliable student data based on criteria established and applied consistently by the school division. The process shall include the review of information or data from multiple sources to determine whether a student's aptitudes and learning needs are most appropriately served through the school division's gifted education program.

"Identification/Placement Committee" "Identification and placement committee" means a standing committee which is composed of a professional who knows the child, classroom teacher or teachers, others representing assessment specialists, gifted program staff and school administration, and others deemed appropriate. This committee may operate at the school or division level. In either case, consistent criteria must be established for the division. the building-level or division-level committee that shall determine a student's eligibility for the division's gifted education program, based on the student's assessed aptitude and learning needs. The identification and placement committee shall determine which of the school division's service options are appropriate for meeting the learning needs of the eligible student.

"Learning needs of gifted students" means gifted students' needs for advanced and complex content that is paced and sequenced to respond to their persistent intellectual, artistic, or technical curiosity; exceptional problem-solving abilities; rapid acquisition and mastery of information; conceptual thinking processes; and imaginative expression across a broad range of disciplines.

"Placement" means the determination of the appropriate educational option options for each eligible student.

"Referral" means the formal and direct process that parents or legal guardians, teachers, professionals, or students, peers, self, or others use to request that a kindergarten through twelfth-grade student be assessed for gifted education program services.

"Screening" is the process of creating the pool of potential candidates using multiple criteria through the referral process, review of test data, or from other sources. Screening is the active search for students who should be evaluated for identification means the divisionwide search each school division conducts at least once annually across all its students to determine which students should be referred for identification and service in the gifted education program. The annual screening shall, at a minimum, consist of a review of current assessment data for all kindergarten through twelfth-grade students. Students selected through the school division's screening process are then referred for formal identification annual process of creating a pool for candidates from kindergarten through twelfth grade using multiple criteria through the referral process, the review of current assessment data, or other information from other sources. Screening is the active search for students who are then referred for the formal identification process.

"Service options" include means the instructional approach or approaches, setting or settings, and staffing selected for the delivery of appropriate service or services that are based on student needs programs service or services provided to eligible students based on their assessed needs in their areas of strength.

"Student outcomes" are specified expectations based on the assessment of student cognitive and affective needs. Such outcomes should articulate expectations for advanced levels of performance for gifted learners means the advanced achievement and performance expectations established for each gifted student, through the review of the student's assessed learning needs and the goals of the program of study, that are reviewed and reported to parents or legal guardians.

Part II
Responsibilities of the Local School Divisions

8VAC20-40-30. Applicability. (Repealed.)

The requirements set forth in this part are applicable to local school divisions providing educational services for gifted students in elementary and secondary schools from kindergarten through graduation.

8VAC20-40-40. Identification Screening, referral, identification, and placement service.

A. Each school division shall establish a uniform procedure with common criteria procedures for screening, referral, and identification of gifted students. referring, identifying, and serving students in kindergarten through twelfth grade who are gifted in general intellectual or specific academic aptitude. If the school division elects to identify students with specific academic aptitudes in general intellectual aptitude, they it shall include procedures for identification and service in, at a minimum, English, history and social science, mathematics, and science, and humanities provide service options from kindergarten through twelfth grade. These procedures will permit referrals from school personnel, parents or legal guardians, other persons of related expertise, peer referral and self-referral of those students believed to be gifted. Pertinent information, records, and other performance evidence of referred students will be examined by a building level or division level identification committee. Further, the committee or committees will determine the eligibility of the referred students for differentiated programs. Students who are found to be eligible by the Identification/Placement Committee shall be offered a differentiated program by the school division. Identification in a specific academic aptitude area may occur as assessment instruments exist to support identification. If the school division elects to identify students in one or more selected academic aptitude areas, it shall provide service options through twelfth grade. School divisions may identify and serve gifted students in career and technical aptitude or visual and or performing arts aptitude, or both, at their discretion.

B. Each school division shall maintain a division review procedure for students whose cases are appealed. This procedure shall involve individuals, the majority of whom did not serve on the Identification/Placement Committee. These uniform procedures shall include a screening process that requires instructional personnel to review, at a minimum, current assessment data on each kindergarten through twelfth-grade student annually. Some data used in the screening process may be incorporated into multiple criteria reviewed by the designated identification and placement committee to determine eligibility, but those data shall not replace norm-referenced aptitude test data.

C. These uniform procedures shall permit referrals from school personnel, parents or legal guardians, or other persons of related expertise, as well as peer or self-referral teachers, professionals, students, peers, self, or others. Such referrals shall be accepted for kindergarten through twelfth-grade students.

D. An identification and placement committee shall review pertinent information, records, and other performance evidence for referred students. The committee shall consider input from a professional who knows the child. The committee shall include a professional who knows the child, as well as classroom teachers, assessment specialists, gifted program staff, school administrators, or others with credentials or experience in gifted education. The committee shall (i) review data from multiple sources selected and used consistently within the division to assess students' aptitudes in the areas of giftedness the school division serves, (ii) determine whether a student is eligible for the division's services, and (iii) determine which of the school division's service options match the learning needs of the eligible student. The committee may review valid and reliable data administered by another division for a transfer student who has been identified previously.

1. Identification of students for the gifted education program shall be based on multiple criteria established by the school division and designed to seek out those students with superior aptitudes, including students for whom accurate identification may be affected because they are economically disadvantaged, have limited English proficiency, or have a disability. Data shall include scores from valid and reliable instruments that assess students' potential for advanced achievement, as well as instruments that assess demonstrated advanced skills, conceptual knowledge, and problem-solving aptitudes.

2. Valid and reliable data for each referred student shall be examined by the building-level or division-level identification and placement committee. The committee shall determine the eligibility of each referred student for the school division's gifted education program services. Students who are found eligible by the identification and placement committee shall be offered programs or courses service options with appropriately differentiated curriculum and instruction by the school division.

3. The identification process used by each school division must ensure that no single criterion is used to determine a student's eligibility. The identification process shall include at least three measures from the following categories:

a. Assessment of appropriate student products, performance, or portfolio;

b. Record of observation of in-classroom behavior;

c. Appropriate rating scales, checklists, or questionnaires;

d. Individual interview;

e. Individually administered or group-administered, nationally norm-referenced aptitude or achievement tests;

f. Record of previous accomplishments (such as awards, honors, grades, etc.); or

g. Additional valid and reliable measures or procedures.

4. If a program is designed to address general intellectual aptitude or specific academic aptitude, an individually administered or group-administered, nationally norm-referenced aptitude test shall be included as one of the three measures used in the school division's identification procedure.

5. If a program is designed to address either the visual and performing arts or career and technical specific academic aptitude, a portfolio or other performance assessment measure in the specific aptitude area shall be included as part of the data reviewed by the identification and placement committee an individually administered or group-administered, nationally norm-referenced aptitude or achievement test shall be included as one of the three measures used in the school division's identification procedures.

6. If a program is designed to address either the visual or performing arts or career and technical aptitude, a portfolio or other performance assessment measure in the specific aptitude area shall be included as a part of the data reviewed by the identification and placement committee.

E. Within 60 business 90 instructional days of, beginning with the receipt of a referral parent's or legal guardian's consent for assessment, the identification and placement committee shall determine the eligibility status of each student referred for the division's gifted education program and notify the parent or guardian of its decision. If a student is identified as gifted and eligible for services, the identification and placement committee shall determine which service options most effectively meet the assessed learning needs of the student. Identified gifted students shall be offered placement in a classroom or program an instructional setting that provides:

1. Appropriately differentiated curriculum and instruction provided by professional instructional personnel trained to work with gifted students; and

2. Monitored and assessed student outcomes that are reported to the parents and legal guardians.

8VAC20-40-50. Criteria for screening and identification. (Repealed.)

Eligibility of students for programs for the gifted shall be based on multiple criteria for screening and identification established by the school division, and designed to seek out high aptitude in all populations. Multiple criteria shall include four or more of the following categories:

1. Assessment of appropriate student products, performance, or portfolio;

2. Record of observation of in-classroom behavior;

3. Appropriate rating scales, checklists, or questionnaires;

4. Individual interview;

5. Individual or group aptitude tests;

6. Individual or group achievement tests;

7. Record of previous accomplishments (such as awards, honors, grades, etc.);

8. Additional valid and reliable measures or procedures.

If a program is designed to address general intellectual aptitude, aptitude measures must be included as one of the categories in the division identification plan. If a program is designed to address specific academic aptitude, an achievement or an aptitude measure in the specific academic area must be included as one of the categories in the division identification plan. If a program is designed to address either the visual/performing arts or technical/practical arts aptitude, a performance measure in the specific aptitude area must be used. Inclusion of a test score in a division identification plan does not indicate that an individual student must score at a prescribed level on the test or tests to be admitted to the program. No single criterion shall be used in determining students who qualify for, or are denied access to, programs for the gifted.

8VAC20-40-55. Parental rights for notification, consent, and appeal.

A. School divisions shall provide written notification to and seek written consent from parents and legal guardians to:

1. Conduct any required assessment to determine a referred student's eligibility for the school division's gifted education program;

2. Announce the decision of the identification and placement committee regarding a referred student's eligibility for and placement in the school division's gifted education program; and

3. Provide services for an identified gifted student in the school division's gifted education program.

B. Each school division shall adopt a review procedure for students whose cases are appealed. This procedure shall involve a committee, the majority of whose members did not serve on the initial identification and placement committee, and shall inform parents or legal guardians, in writing, of the appeal process. Requests filed by parents or legal guardians to appeal any action of the identification and placement committee shall be filed within 10 business instructional days of receipt of notification of the action by the division. The process shall include an opportunity to meet with an administrator to discuss the decision.

1. A parent or legal guardian of a student who was referred but not identified by the identification and placement committee as eligible for services in the school division's gifted education program shall be informed, in writing, within 10 business instructional days, of the school division's process to appeal the committee's decision.

2. A parent or legal guardian of an identified gifted student may appeal any action taken by the school division to change the student's identification for, placement in, or exit from the school division's gifted education program.

C. Following the notification and consent of a parent or legal guardian, the identification and placement committee shall apprise school administrators of each student's eligibility status.

8VAC20-40-60. Local plan, local advisory committee, and annual report.

A. Each school board shall submit a comprehensive plan for the education of gifted students to the Department of Education (DOE) for technical review on a schedule determined by the department. Each school division board shall submit to the Department of Education for approval a review and approve annually a comprehensive plan for the education of gifted students that includes the components identified in these regulations. Modifications to the plan shall be reported to the Department of Education on dates specified by the department. The development process for the school division's local plan for the education of the gifted shall include opportunities for public review of the school division's plan. The approved local plan shall be accessible through the school division's website and the school division shall ensure that printed copies of the comprehensive plan are available to citizens who do not have online access. The plan shall include the following components as follow:

1. A statement of philosophy for the gifted education program [ and the local operational definition of giftedness for the school division ];

2. A statement of the school division's gifted education program goals and objectives for identification, delivery of services, curriculum and instruction, personnel preparation professional development, [ equitable representation of students, ] and parent and community involvement;

3. Procedures for the early and on-going screening, referral, identification and placement of gifted students;, beginning with kindergarten through secondary graduation twelfth-grade in at least one of the four defined areas of giftedness; a general intellectual or a specific academic aptitude program; and, if provided in the school division, procedures for the screening, referral, identification, and placement of gifted students in visual and or performing arts or career and technical aptitude programs;

4. A procedure for notifying written notification of parents or legal guardians when additional testing or additional information is required during the identification process and for obtaining permission of parents or legal guardians prior to placement of students a gifted student in the appropriate program service options;

5. A policy for notifying gifted students' change of placement within, and written notification to parents or legal guardians of identification and placement decisions, including initial changes in placement or exit from the program, which includes an opportunity for parents who disagree with the committee or committees decision to meet and discuss their concern or concerns with an appropriate administrator. Such notice shall include an opportunity for parents or guardians to meet and discuss their concerns with an appropriate administrator and to file an appeal;

6. Assurances that student records are maintained according to 8VAC20-150-10 et seq., Management of Student's Scholastic Record in the Public Schools of Virginia in compliance with applicable state and federal privacy laws and regulations;

7. Assurances that (i) testing and evaluation assessment materials selected and administered are sensitive to free of the selected and administered testing and assessment materials have been evaluated by the developers for cultural, racial, and linguistic differences, biases; (ii) identification procedures are constructed so that they those procedures may identify high potential/ability in all underserved culturally diverse, low socio-economic, and disabled populations, high potential or aptitude in any student whose accurate identification may be affected by economic disadvantages, by limited English proficiency, or by disability; (iii) standardized tests and other measures have been validated for the specific purpose for which they are used purpose of identifying gifted students; and (iv) instruments are administered and interpreted by a trained personnel in conformity with the developer's instructions of their producer;

8. A procedure to identify and evaluate student outcomes based on the initial and ongoing assessment of their cognitive and affective needs;

9. A procedure to match service options, including instructional approaches, settings, and staffing, to designated student needs;

10. A framework for appropriately differentiated curricula indicating accelerative and enrichment opportunities in content, process, and product;

11. Procedures for the selection/evaluation of teachers and for the training of personnel to include administrators/supervisors, teachers, and support staff;

12. Procedures for the appropriate evaluation of the effectiveness of the school division's program for gifted students; and

13. Other information as required by the Department of Education.

8. Assurances that accommodations or modifications determined by the school division's special education Individualized Education Program (IEP) team, as required for the student to receive a free appropriate public education, shall be incorporated into the student's gifted education services;

9. Assurances that a written copy of the school division's approved local plan for the education of the gifted is available to parents or legal guardians of each referred student, and to others upon request;

10. Evidence that gifted education service options from kindergarten through twelfth grade are offered continuously and sequentially, with instructional time during the school day and week to (i) work with their age-level peers, (ii) work with their intellectual and academic peers, (iii) work independently;, and (iv) foster intellectual and academic growth of gifted students. Parents and legal guardians shall receive assessment of each gifted student's intellectual and academic growth;

11. A description of the school division's program of differentiated curriculum and instruction demonstrating accelerated and advanced content within programs or courses;

12. Polices Policies and procedures that allow access to programs of study and advanced courses at a pace and sequence commensurate with their learning needs;

13. Evidence that school divisions provide professional development based on the [ teacher ] competencies [ specified outlined ] in 8VAC20-542-310 [ , Gifted education (add-on endorsement), for instructional personnel who deliver services within the gifted education program related to gifted education ]; and

14. Procedures for the annual evaluation review of the effectiveness of the school division's gifted education program, including [ the review of screening, referral, identification, and program procedures toward the achievement of equitable representation of students, the ] review of student outcomes and the intellectual and academic growth of gifted students. Such evaluations review shall be based on multiple criteria and shall include multiple sources of information for gifted students.

B. Each school division shall establish a local advisory committee composed of parents, school personnel, and other community members who are appointed by the school board. This committee shall reflect the ethnic and geographical composition of the school division. The purpose of this committee shall be to advise the school board through the division superintendent of the educational needs of all gifted students in the division. As a part of this goal, the This committee shall have two responsibilities: (i) to review annually the local plan for the education of gifted students, including revisions, and (ii) to determine the extent to which the plan for the previous year was implemented. The findings of the annual program effectiveness and the recommendations of the advisory committee shall be submitted annually in writing through to the division superintendent to and the school board.

C. Each school division shall submit an annual report to the Department of Education in a format prescribed by the department.

8VAC20-40-70. Funding. (Repealed.)

State funds administered by the Department of Education for the education of gifted students shall be used to support only those activities identified in the school division's plan as approved by the Board of Education. Funds designated by the Virginia General Assembly for the education of gifted students shall be used by school divisions in accordance with the provisions of the appropriation act.