Titles of Regulations: 8VAC20-60. Regulations Governing the Approval of Correspondence Courses for Home Instruction (repealing 8VAC20-60-10 through 8VAC20-60-100).

8VAC20-340. Regulations Governing Driver Education (adding 8VAC20-340-5, 8VAC20-340-40).

Statutory Authority: §§ 22.1-16 and 22.1-205 of the Code of Virginia.

Public Hearing Information:

July 25, 2013 - 11 a.m. - Department of Education, James Monroe Building, 101 North 14th Street, 22nd Floor Conference Room, Richmond, VA

Public Comment Deadline: August 2, 2013.

Agency Contact: Anne D. Wescott, Assistant Superintendent for Policy and Communications, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 225-2403, FAX (804) 225-2524, or email anne.wescott@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia vests the Board of Education with the authority to promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of Title 22.1 of the Code of Virginia. In addition, § 22.1-205 of the Code of Virginia provides the board with the authority to approve correspondence courses for the classroom training component of driver education.

Purpose: Chapter 364 of the 2008 Acts of Assembly removed the correspondence course approval requirements in § 22.1-254.1 of the Code of Virginia so that parents who home instruct can use any correspondence course of their choosing. However, the requirement for the approval of correspondence courses for driver education by the department remains. The proposed amendments consolidate the process for approval of correspondence courses for driver education into one set of regulations. This streamlines and clarifies the current approval process for users.

The proposed regulatory action is essential to protect the health, safety, and welfare of the public in that it will ensure that courses offered by correspondence schools in driver education will meet state requirements for such programs. It will also help ensure that young aspiring drivers receive adequate instruction prior to seeking a driver's license.

Substance: The proposed change repeals an outdated regulation (Regulations Governing the Approval of Correspondence Courses for Home Instruction) initially adopted by the Board of Education in 1985 and revises a current regulation (Regulations Governing Driver Education) directed specifically at approving driver education courses offered as correspondence programs. The need for a separate set of regulations was eliminated by an amendment to § 22.1-254.1 of the Code of Virginia by the 2008 General Assembly.

The proposed amendment to 8VAC20-340 (Regulations Governing Driver Education) regarding approval of correspondence courses for driver education consolidates the approval process into one set of regulations, streamlining the current process and deleting an obsolete set of regulations, 8VAC20-60 (Regulations Governing the Approval of Correspondence Courses for Home Instruction).

The proposed amendments include the definition section from the repealed regulations with minor revisions and add a definition for the term "parent." The proposed amendments require the applicant to submit to the department as part of the application process an affidavit, a schedule of tuition and fees, a description of its refund policy, and copies of all application forms and enrollment agreements used by the correspondence program. All proposed amendments are to protect the parents and students who use these programs. The approval criteria have been expanded to add a requirement that the content of each course meets the requirements of the Driver Education Standards of Learning and the Curriculum and Administrative Guide for Driver Education in Virginia, 2010 edition. An appeals process has also been added to clarify the applicant's right to due process.

Issues: The proposed amendments ensure that courses approved by the State Board of Education and offered by driver education correspondence programs will meet the minimal requirements for such programs offered in public schools. It will also help ensure that young aspiring drivers receive adequate instruction prior to seeking a driver's license. This should ensure better drivers and a safer public. In addition, the proposed revisions will protect the parents and students who use these programs.

This regulatory action does not pose a disadvantage to the public or to the Commonwealth in any way.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. In 1984, the Virginia General Assembly adopted legislation amending the state's compulsory attendance laws (§ 22.1-254 of the Code of Virginia) to allow parents to teach their children at home in lieu of sending them to a public or private school. One of the provisions qualifying parents to home instruct their children permitted them to enroll a child in a correspondence course approved by the Board of Education (§ 22.1-254.1 of the Code). In 1999, the General Assembly amended § 22.1-205 of the Code to permit the Board to approve correspondence courses in the classroom portion of driver education for parents who home-school their children.

The 2008 General Assembly adopted HB 767 that removed the correspondence course approval requirements in § 22.1-254.1 so that parents who home instruct can use any correspondence course of their choosing to meet this option rendering the previous approval requirement moot, except in the case of driver education. As a result, the Board proposes to repeal the Regulations Governing the Approval of Correspondence Courses for Home Instruction. However, the requirement for the approval of correspondence courses for driver education by the Board remains. In order to ensure continued compliance with this requirement, the Board proposes a new section governing the approval of correspondence courses for driver education be added to the Regulations Governing Driver Education, thus, consolidating the process for approval of correspondence courses for driver education in one set of regulations.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Except in the case of driver education, since the 2008 General Assembly adopted HB 767 the Regulations Governing the Approval of Correspondence Courses for Home Instruction have served no person. Currently portions of the public may mistakenly believe that correspondence courses require Board approval. Thus the proposal to repeal these regulations will be beneficial since it would eliminate this potential source of confusion.

The Board proposal to add a new section governing the approval of correspondence courses for driver education to the Regulations Governing Driver Education will not produce any change of requirements in practice. Thus it will have no impact other than perhaps helping the public find the relevant requirements.

Businesses and Entities Affected. The proposed regulations affect the four approved driver education correspondence programs in the Commonwealth, as well as any other future programs which may wish to apply for approval.

Localities Particularly Affected. The proposed regulations do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal of the Regulations Governing the Approval of Correspondence Courses for Home Instruction and the proposed addition to the Regulations Governing Driver Education of a new section governing the approval of correspondence courses for driver education are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of the Regulations Governing the Approval of Correspondence Courses for Home Instruction and the proposed addition to the Regulations Governing Driver Education of a new section governing the approval of correspondence courses for driver education are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of the Regulations Governing the Approval of Correspondence Courses for Home Instruction and the proposed addition to the Regulations Governing Driver Education of a new section governing the approval of correspondence courses for driver education does not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of the Regulations Governing the Approval of Correspondence Courses for Home Instruction and the proposed addition to the Regulations Governing Driver Education of a new section governing the approval of correspondence courses for driver education does not adversely affect small businesses.

Real Estate Development Costs. The proposed repeal of the Regulations Governing the Approval of Correspondence Courses for Home Instruction and the proposed addition to the Regulations Governing Driver Education of a new section governing the approval of correspondence courses for driver education will not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The State Board of Education concurs with the economic impact analysis completed by the Department of Planning and Budget and will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The proposed action repeals 8VAC20-60 (Regulations Governing the Approval of Correspondence Courses for Home Instruction) and moves some provisions of that chapter to new sections added to 8VAC20-340 (Regulations Governing Driver Education). The proposed amendments include the definition section from the repealed regulation, with minor revisions, and add a definition for the term "parent" in the new section. In addition, the proposed amendments require the applicant to submit to the department as part of the application process an affidavit, a schedule of tuition and fees, a description of its refund policy, and copies of all application forms and enrollment agreements used by the correspondence program. The approval criteria have been expanded to add a requirement that the content of each course meets the requirements of the Driver Education Standards of Learning and the Curriculum and Administrative Guide for Driver Education in Virginia, 2010 edition. An appeals process has also been added to clarify the applicant's right to due process.

8VAC20-340-5. Definitions.

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

"Board" means the Virginia Board of Education.

"Correspondence school" means a school, organization, or other entity, no matter how titled, that teaches students by mailing them lessons and exercises that upon completion are returned to the school for grading. Such lessons or exercises also may be transmitted and graded by electronic means.

"Course" means the presentation of an orderly sequence of material dealing with an individual subject area, such as driver education.

"Department" means the Virginia Department of Education.

"Home instruction" means the teaching of a child or children by a teaching parent in the home as an alternative to meeting the requirements of compulsory attendance as defined in § 22.1-254 of the Code of Virginia and as a means of complying with § 22.1-254.1 of the Code of Virginia.

"Parent" means any parent, guardian, legal guardian, or other person having control or charge of a child as specified in § 22.1-1 of the Code of Virginia.

"School" means a correspondence school for driver education programs.

8VAC20-340-40. Approval of correspondence courses for driver education.

A. Required submissions. Schools seeking approval to offer the classroom portion of a driver education program to school-age children through a correspondence program or course in Virginia shall submit the following:

1. A signed and completed copy of the department's affidavit form.

2. A catalog or other documents containing the following information:

a. A statement of ownership or control of the institution;

b. Descriptions of the driver education courses offered by the institution;

c. A description of the method used to evaluate the students' work;

d. A schedule of tuition and fees, including the school's refund policies; and

e. Copies of all application forms and enrollment agreements used by the school.

3. Verification of approval or exemption from regular oversight from the appropriate state or local government agency in the school's state of domicile.

4. Information regarding the school's accreditation status.

5. The name and publisher of the textbook required.

6. An estimate of the minimum amount of time (in hours) required to complete the course.

7. Such additional information as the board or department may deem necessary.

B. All schools must evaluate the students' work at regular intervals specified by the department and maintain a permanent record of the work.

C. Each school meeting the criteria listed in this section is required to submit the required materials for review every year concurrent with the renewal affidavit.

D. Approval criteria. Driver education courses offered by schools submitting the materials required by this section shall be approved if the following criteria have been met:

1. The school is, in fact, a correspondence school as defined in 8VAC20-340-5;

2. The courses offered are consistent with state or federal laws or regulations;

3. The school evaluates the students' progress at regular intervals specified by the department and maintains a permanent record of that work; and

4. The content of each course is accurate, rigorous, and meets the requirements of the Curriculum and Administrative Guide for Driver Education in Virginia, 2010 edition, which includes the Driver Education Standards of Learning.

The school must provide evidence that at least two subject matter experts have reviewed and validated the accuracy of online content and textbook materials.

E. The department will consider an application complete when it determines that all required information has been submitted in the form required by the department. If the department finds the application incomplete, the applicant will be notified in writing within 45 days of receipt of the incomplete application. If the applicant does not resubmit a complete application within 45 days from the notification, the case file for the request for approval as a provider will be closed. Prior to closure, the applicant may withdraw the request for approval. The applicant may resubmit a complete application at a later time.

F. Approval process. After a review of the complete application, the department will notify the applicant of its decision regarding approval. If the application is approved, the department will issue a letter of approval with terms of the approval. If the department denies or revokes the approval for good cause, the department will issue a letter stating the reasons for revocation and denial, including information regarding the applicant's right to appeal this decision.

G. Appeal process for denial or revocation.

1. Fact-finding conference: notification, appearance, and conduct.

a. Unless emergency circumstances exist that require immediate action, no application shall be denied, suspended, or revoked except upon notice stating the proposed basis for such action and the time and place for a fact-finding conference.

b. If a basis exists for a refusal to approve or a suspension or a revocation of the department's approval, the department shall notify, via certified or hand-delivered mail, the interested parties at the address of record maintained by the department.

c. Notification shall include the basis for the proposed action and any information in the possession of the department that can be relied upon in making an adverse decision.

d. The fact-finding conference shall afford the interested party the opportunity to present written and oral information to the department that may have a bearing on the proposed action at a fact-finding conference. Such information should include a brief, written statement of errors the party believes were made in the department's decision.

e. If no withdrawal occurs, a fact-finding conference shall be scheduled at the earliest mutually agreeable date, but no later than 60 days from the date of the notification. A school wishing to waive its right to a conference to proceed directly to a formal hearing shall notify the department of such at least 14 days before the scheduled conference.

f. The department may rely on public data, documents, or information in making its decision if all parties are given advance notice of the department's intent to rely on such data.

g. If, after consideration of information presented during an informal fact-finding conference, a basis for adverse action still exists, the department shall send to the interested parties a report on the fact-finding conference within 90 days of the conference, via certified or hand-delivered mail, that shall include the decision, a brief and general description of the factual or procedural basis for the decision, and the right to a formal hearing.

h. Parties may enter into a consent agreement to settle the issues at any time prior to, during, or subsequent to an informal fact-finding conference.

2. Hearing: notification, appearance, and conduct.

a. If an interested party intends to request a formal hearing, it shall notify the department within 30 days of receipt of a report on the fact-finding conference.

b. Parties shall be given reasonable notice of the (i) time, place, and nature of the hearing; (ii) basic law under which the department contemplates its possible exercise of authority; and (iii) matters of fact and law asserted or questioned by the department.

c. If an interested party or representative fails to appear at a hearing, the hearing officer may proceed in the party's or representative's absence and make a recommendation.

d. Oral and written arguments may be submitted to and limited by the hearing officer. Oral arguments shall be recorded in an appropriate manner.

e. The burden of proof at such hearings shall be on the party seeking to reverse the decision of the department.

3. Hearing location. Hearings before a hearing officer shall be held, insofar as practical, in the county or city in which the school is located. Hearing officers may conduct hearings at locations convenient to the greatest number of persons or by telephone conference, videoconference, or similar technology in order to expedite the hearing process. No hearing shall be located outside of the Commonwealth of Virginia unless it is held by electronic means as specified in the Code of Virginia.

4. Hearing decisions.

a. Recommendations of the hearing officer shall be a part of the record and shall include a written statement of the hearing officer's findings of fact and recommendations as well as the reasons or basis for the recommendations. Recommendations shall be based upon all the material issues of fact, law, or discretion presented on the record.

b. The Superintendent of Public Instruction shall review the recommendation of the hearing officer and render a decision on the recommendation within 30 days of receipt. The decision shall cite the appropriate rule, relief, or denial thereof as to each issue.

c. The Superintendent of Public Instruction's decision regarding the school's approval shall be delivered to the concerned parties within five days of the decision and include a brief statement of the conclusions, the basis of the conclusions, the basic law upon which the department relies, and the recommendation of the hearing officer.

5. Agency representation. The Superintendent of Public Instruction's designee may represent the department in an informal conference or at a hearing.

H. Determination of continued compliance. Approval of the academic courses shall be renewed annually on or before August 1, provided that the school verifies that it continues to meet the requirements of this section. Forms for this purpose shall be provided by the department.

I. Disclaimer. The Board of Education's approval of a correspondence course is not an endorsement of the program as a substitute for public school programs nor is it an endorsement of the educational or operational philosophy of the school. Additionally, the approval of courses is not intended as an endorsement of the quality of the courses nor is it a conclusion that these courses meet the educational needs of the student or the assessment required by § 22.1-254.1 of the Code of Virginia.

Parents who choose to educate their children at home through a driver education correspondence course are directly responsible for the educational progress of their children and the adequacy of instruction. The board assumes no liability for damages or financial loss to parents using any of the approved driver education correspondence courses.

J. Restrictions. No school whose courses are approved as a driver education program shall advertise in any way that the courses have the endorsement, recommendation, accreditation, or recognition, or any other similar term, of the board, the department, or the Commonwealth of Virginia.

K. Transmitting the affidavit, documents, and other materials. The affidavit, related letters, forms, and other required application materials must be submitted to the Division of Instruction at the Virginia Department of Education by email to the Driver Education Specialist, whose contact information may be found at http://www.doe.virginia.gov/directories/index.shtml#vdoe.

FORMS (8VAC20-340)

Affidavit for Approval to Provide Driver Education Programs for Parents Approved to Home School (undated).

Classroom Driver Education Program Approval/Renewal for Homeschool Students (undated).

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-340)

Curriculum and Administrative Guide for Driver Education in Virginia, 2010 Edition (includes Driver Education Standards of Learning, revised January 2008), Virginia Department of Education (http://www.doe.virginia.gov/instruction/driver_education/curriculum_admin_guide/index.shtml).