Title of Regulation: 8VAC20-131. Regulations Establishing Standards for Accrediting Public Schools in Virginia (amending 8VAC20-131-5; adding 8VAC20-131-185).

Statutory Authority: §§ 22.1-16 and 22.1-253.13:3 of the Code of Virginia.

Public Hearing Information:

September 10, 2015 - 11 a.m. - James Monroe Building, 101 North 14th Street, 22nd Floor, Conference Room, Richmond, Virginia 23219. The public hearing will begin immediately following adjournment of the Board of Education business meeting.

Public Comment Deadline: September 25, 2015.

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

Basis: The Board of Education's authority for promulgating regulations governing standards for accrediting public schools may be found in § 22.1-253.13:3 of the Code of Virginia and includes promulgating regulations establishing standards for accreditation of public virtual schools under the authority of the local school board that enroll students full time. The Board of Education's overall regulatory authority is found in § 22.1-16 of the Code of Virginia, which provides that the board may adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title.

Purpose: This regulatory action is necessary to protect the health, safety, and welfare of citizens, particularly those of school age. This regulatory action is essential to comport with the Code of Virginia and to ensure that an effective educational program is established and maintained in all of Virginia's public schools, including Virginia's public virtual schools. These regulations will further ensure that public virtual schools meet the same accreditation requirements as the brick-and-mortar public school. It is important that all public schools adhere to the same rigorous standards so that all students receive an effective education that helps them to become career and college ready.

Substance: The proposed amendments define a public virtual school as a school under the authority of the local school board where a student is enrolled full time and receives instruction primarily electronically using the Internet or other computer-based methods.

The proposed amendments are designed to provide public virtual schools with an alternative way of meeting the requirements that are currently in place for public brick-and-mortar schools, or an exemption from any requirement that would not be reasonable for a public virtual school. Specifically, the proposed amendments provide for the following:

1. Licensed personnel employed either by the school division or the public virtual school provider would be required to supervise student testing for the Virginia assessment program.

2. If a student enrolled in a public virtual school participates in a career and technical education course that requires cooperative education or work-based experience, the safety training provided in the virtual classroom would be required to be equivalent to the safety training given at a worksite.

3. Any teacher providing instruction in a full-time virtual school in Virginia shall hold a valid Virginia teaching license and shall be appropriately endorsed by the Board of Education for that teacher's assignment.

4. Each student enrolled in a public virtual school must have access to the necessary technology for participation in public virtual school courses, including a computer and printer, as well as a broadband Internet connection for school work purposes.

5. The local school board shall develop a policy that students who are unable to afford the necessary technology, including the hardware, software, and the broadband connection to the Internet, shall be provided with these items.

6. Students and teachers would be required to have the necessary technical security to ensure student safety while using the computer for school work.

7. Technical support services and training must be provided to assist in the resolution of technical problems for teachers and students.

8. New and experienced online teachers employed to instruct students in the public virtual school must participate annually in professional development for online teaching.

9. The requirement for 140 clock hours of instruction to earn a standard unit of credit may be waived if the content of the course is comparable to a course that would otherwise require 140 clock hours of instruction in a non-virtual setting and, upon completion, the student would be able to demonstrate mastery of the course.

10. The school board would be required to develop a written policy to ensure that all students receiving instruction in a public virtual school setting have access to adequate and appropriate library resources.

11. Guidance counseling and other student support services are required to be available to students in the public virtual school from appropriately licensed and endorsed personnel.

12. Extracurricular activities and eligibility requirements for students in virtual school settings shall be established and approved by the superintendent and the school board.

13. Public virtual schools would be exempt from the school facilities and safety requirements unless the public virtual school is operated in a stand-alone facility.

14. A full time public virtual school shall have a learning management system that provides secure and appropriate access to the virtual learning environment; supports the creation and management of content and assessments; provides communication tools that facilitate synchronous and asynchronous discussion and collaboration among learners and teachers; and supports the collection, management, and reporting of data on learning outcomes.

15. Student engagement shall be monitored. If a student fails to interact with the learning management system every school day, the public virtual school principal or designee shall contact the students parent or guardian.

16. Public virtual schools would be required to provide all policies and procedures unique to enrollment and matriculation in the public virtual school to parents prior to enrollment and post such information for the public on the school division's website.

Issues: There are no disadvantages to the public, the Commonwealth, or the agency. The primary advantage to the public is in ensuring that the same standards apply to all public schools, both virtual and bricks-and-mortar, which will mean that all students receive a quality public education. The primary advantage to the Commonwealth, the agency, and local school divisions is that there will now be standards that are applicable to virtual public schools, which will assist local school boards in developing, establishing, and maintaining an effective educational program in schools.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapter 183 of the 2012 Acts of Assembly amends Virginia Code § 22.1-253.13:3 by requiring the Board of Education (Board) to promulgate regulations establishing standards for the accreditation of public virtual schools that enroll full-time students. Consequently, the Board proposes to promulgate these regulations, Regulations Establishing Standards for Accrediting Public Schools in Virginia, to satisfy the statutory requirement.

Result of Analysis. The benefits likely exceed the costs for some changes. For other amendments, whether the benefits exceed the costs depend on the policy views of the observer.

Estimated Economic Impact. There is currently one public virtual school in Virginia, in Carroll County. The school is accredited, having been granted waivers by the Board from certain provisions in these regulations that were not applicable to virtual schools. The requirements for virtual schools under the proposed regulations are consistent with the status quo with one exception. The local school board would be required to develop a policy that students who are unable to afford the necessary technology, including the hardware, software, and the broadband connection to the Internet, shall be provided with these items.

This would increase costs for establishing and maintaining a virtual school. Currently local school divisions are not specifically required to provide hardware, software, and broadband connections to the Internet for students from low-income families. The additional cost for local divisions if they choose to have a virtual school would likely be in the hundreds of dollars per low-income student who qualified for the virtual school. The total cost would depend on the cost of the specific software needed for the particular virtual instruction program, the hardware attributes needed to handle the software, and the number of low-income students who qualify.

Specifying the requirements for virtual schools in regulations is advantageous for local school boards in that it reduces uncertainty. Requiring that the local school board develop a policy that students who are unable to afford the necessary technology, including the hardware, software, and the broadband connection to the Internet, be provided with these items is beneficial in that enables lower socioeconomic students to have the same opportunity to attend a virtual school as middle and upper socioeconomic students. On the other hand, it significantly increases costs for local divisions which may result in cuts to other areas of educational spending or make it too expensive to have an otherwise planned virtual school. Whether the benefit of increased potential opportunity for some low-income students exceeds the potential cost of cuts to other areas depends on the policy views of the observer.

Businesses and Entities Affected. The proposed amendments potentially affect the 132 public school divisions in the Commonwealth, their staff, and their students, as well providers of software, hardware, and Internet service.

Localities Particularly Affected. The proposed regulations potentially affect all localities.

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed regulations are unlikely to have a large impact on the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed regulations are unlikely to have a large impact on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations are unlikely to have a large impact on small businesses.

Real Estate Development Costs. The proposed amendments 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 agency concurs with the economic impact analysis completed by the Department of Planning and Budget.

Summary:

The proposed amendments (i) define a public virtual school; (ii) specify those provisions in the current regulations that are not applicable to public virtual schools, such as exempting the school from school facilities and safety requirements unless the school is in a stand-alone facility, and providing appropriate options for library services, counseling and student services, and extracurricular activities; and (iii) add provisions applicable only to public virtual schools, such as ensuring that students have access to the necessary technology and monitoring student engagement online.

Part I
Definitions and Purpose

8VAC20-131-5. Definitions.

The following words and terms apply only to these regulations this chapter and do not supersede those definitions used for federal reporting purposes or for the calculation of costs related to the Standards of Quality (§ 22.1-253.13:1 et seq. of the Code of Virginia). When used in these regulations this chapter, these words shall have the following meanings, unless the context clearly indicates otherwise:

"Accreditation" means a process used by the Virginia Department of Education (hereinafter "department") to evaluate the educational performance of public schools in accordance with these regulations this chapter.

"Additional test" means a test, including substitute tests approved by the Board of Education that students may use in lieu of a Standards of Learning test to obtain verified credit.

"Class period" means a segment of time in the school day that is approximately 1/6 of the instructional day.

"Combined school" means a public school that contains any combination of or all of the grade levels from kindergarten through grade 12. This definition does not include those schools defined as elementary, middle, or secondary schools.

"Credit accommodations" means adjustments to meet the standard and verified credit requirements for earning a Standard Diploma for students with disabilities.

"Elementary school" means a public school with any grades kindergarten through five.

"Eligible students" means the total number of students of school age enrolled in the school at a grade or course for which a Standards of Learning test is required unless excluded under the provisions of 8VAC20-131-30 G and 8VAC20-131-280 D relative to limited English proficient (LEP) students.

"Enrollment" means the act of complying with state and local requirements relative to the registration or admission of a child for attendance in a school within a local school division. This term also means registration for courses within the student's home school or within related schools or programs.

"First time" means the student has not been enrolled in the school at any time during the current school year (for purposes of 8VAC20-131-60 with reference to students who transfer in during the school year).

"Four core areas" or "four core academic areas" means English, mathematics, science, and history and social science for purposes of testing for the Standards of Learning.

"Graduate" means a student who has earned a Board of Education recognized diploma, which includes the Advanced Studies Diploma, the Standard Diploma, and the Special Diploma.

"Homebound instruction" means academic instruction provided to students who are confined at home or in a health care facility for periods that would prevent normal school attendance based upon certification of need by a licensed physician or a licensed clinical psychologist.

"Learning management system" or "LMS" means a technology platform through which online courses are accessed by students and teachers. The LMS facilitates delivery, management, tracking, and reporting of content, student and teacher interactions, and learner progress.

"Locally awarded verified credit" means a verified unit of credit awarded by a local school board in accordance with 8VAC20-131-110.

"Middle school" means a public school with any grades 6 through 8.

"Planning period" means one class period per day or the equivalent unencumbered of any teaching or supervisory duties.

"Public virtual school" means a school under the authority of the local school board where a student is enrolled full time and receives instruction primarily electronically, using the Internet or other computer-based methods.

"Recess" means a segment of free time exclusive of time provided for meals during the standard school day in which students are given a break from instruction.

"Reconstitution" means a process that may be used to initiate a range of accountability actions to improve pupil performance, curriculum, and instruction to address deficiencies that caused a school to be rated Accreditation Denied that may include, but not be limited to, restructuring a school's governance, instructional program, staff or student population.

"School" means a publicly funded institution where students are enrolled for all or a majority of the instructional day and:

1. Those students are reported in fall membership at the institution; and

2. At a minimum, the institution meets the preaccreditation eligibility requirements of these regulations as adopted by the Board of Education.

"Secondary school" means a public school with any grades 9 through 12.

"Standard school day" means a calendar day that averages at least five and one-half instructional hours for students in grades 1 through 12, excluding breaks for meals and recess, and a minimum of three instructional hours for students in kindergarten.

"Standard school year" means a school year of at least 180 teaching days or a total of at least 990 teaching hours per year.

"Standard unit of credit" or "standard credit" means credit awarded for a course in which the student successfully completes 140 clock hours of instruction and the requirements of the course. Local school boards may develop alternatives to the requirement for 140 clock hours of instruction as provided for in 8VAC20-131-110.

"Standards of Learning tests" or "SOL tests" means those criterion referenced assessments approved by the Board of Education for use in the Virginia assessment program that measure attainment of knowledge and skills required by the Standards of Learning.

"Student" means a person of school age as defined by § 22.1-1 of the Code of Virginia, a child with disabilities as defined in § 22.1-213 of the Code of Virginia, and a person with limited English proficiency in accordance with § 22.1-5 of the Code of Virginia.

"Student periods" means the number of students a teacher instructs per class period multiplied by the number of class periods taught.

"Verified unit of credit" or "verified credit" means credit awarded for a course in which a student earns a standard unit of credit and achieves a passing score on a corresponding end-of-course SOL test or an additional test approved by the Board of Education as part of the Virginia assessment program.

"Virginia assessment program" means a system used to evaluate student achievement that includes Standards of Learning tests and additional tests that may be approved from time to time by the Board of Education.

8VAC20-131-185. Public virtual schools.

A. Public virtual schools shall meet all of the laws and regulations required of all other public schools, unless otherwise specified in this section.

Instruction in a public virtual school shall be designed to accommodate all students, including those identified with disabilities in accordance with the Individuals with Disabilities Education Act (20 USC § 1431 et seq.) or § 504 of the Rehabilitation Act, as amended (29 USC § 794); those identified as gifted; and those who have limited English proficiency. Any school division providing instruction to students in a virtual school setting must have written policies and procedures that address service delivery to accommodate all students. Instruction provided by a public virtual school must comport with the requirements of the Standards of Learning and career and technical education competencies and must be provided by teachers licensed by the Board of Education and endorsed in the subjects in which they provide instruction.

Students enrolled in a public virtual school shall be required to take all applicable Virginia assessment program tests in a secure, controlled, and proctored environment under the supervision of licensed personnel employed by a local school division or the public virtual school provider and trained in administering the tests.

If a student enrolled in a public virtual school participates in a career and technical education course that requires cooperative education work-based experience, the safety training provided in the virtual classroom must be equivalent and related to the safety training given at a worksite. To achieve the competencies related to the use of equipment and machinery may require on-site instruction during the course, which may be conducted in a classroom laboratory or in a work-based instructional environment in which any safety requirements would apply.

B. Any teacher providing instruction in a full-time public virtual school in Virginia shall hold a valid Virginia teaching license and shall be appropriately endorsed for his assignment by the Board of Education.

C. Each student enrolled in a public virtual school shall have access to the necessary technology for participation in public virtual school courses, such as a computer and printer, and to a broadband Internet connection for school work purposes. The local school board shall develop a policy that students who are unable to afford the necessary technology, including the hardware, software, and the broadband connection to the Internet, shall be provided with these items. In addition, students and teachers shall have the necessary technical security to ensure student safety while using the computer for school work.

Technical support services and training shall be provided to assist in the resolution of technical problems for teachers and students.

New and experienced online teachers employed to instruct students in the public virtual school shall participate annually in professional development for online teaching.

D. The requirement for 140 clock hours of instruction to earn a standard unit of credit may be waived if the content of the course is comparable to a course that would otherwise require 140 clock hours of instruction in a non-virtual school setting and, upon completion, the student will be able to demonstrate mastery of the course.

E. Section 22.1-98 of the Code of Virginia requires the length of the school term to be not less than 180 teaching days or 990 teaching hours in any school year unless there are severe weather conditions or other emergency situations resulting in the closing of the school. Furthermore, students who complete their course requirements in fewer than 180 days or 990 hours (a standard school year) are still subject to § 22.1-254 of the Code of Virginia, compulsory attendance. The school division shall develop policies and procedures to ensure that the student is in compliance with § 22.1-254 of the Code of Virginia throughout the school year.

Where a student has mastered the course content and completed all course requirements in fewer than 180 days or 990 hours, the school shall enroll the student in the next course level or in another course, provide remediation if needed, focus on increasing the student's academic proficiency, provide enrichment, or meet the student's academic needs in another way as determined by school board policies.

F. Each local school board that authorizes a public virtual school must develop a written policy to ensure that all students receiving instruction in a public virtual school setting have access to adequate and appropriate library resources sufficient to meet research, inquiry, and reading requirements of the instructional program and general student interest.

G. Guidance counseling and other student support services shall be available to students in the public virtual school from appropriately licensed and endorsed personnel.

H. Extracurricular activities and eligibility requirements for students in virtual school settings shall be established and approved by the superintendent and the school board.

I. Public virtual schools are exempt from the requirements in 8VAC20-131-260, related to school facilities and safety, unless the public virtual school is operated in a stand-alone facility.

J. A full-time public virtual school shall have a learning management system that provides secure and appropriate access to the virtual learning environment; supports the creation and management of content and assessments; provides communication tools that facilitate synchronous and asynchronous discussion and collaboration among learners and teachers; and supports the collection, management, and reporting of data on learning outcomes.

K. Student engagement shall be monitored. If a student fails to interact with the learning management system every school day, the public virtual school principal or designee shall contact the student's parent or guardian.

L. The public virtual school principal or designee shall be responsible for:

1. Analyzing the school's test scores annually, by grade and by discipline, to:

a. Direct and require appropriate prevention, intervention, remediation, or any combination thereof to those students performing below grade level or not passing the SOL tests;

b. Involve the staff of the school in identifying the types of staff development needed to improve student achievement and ensure that the staff participate in those activities; and

c. Analyze classroom practices and methods for improvement of online instruction;

2. Ensuring that student records are maintained and that criteria used in making placement and promotion decisions, as well as any instructional interventions used to improve the student's performance, are included in the record;

3. Monitoring and evaluating the quality of instruction, providing staff development, providing support that is designed to improve instruction, and seeking to ensure the successful attainment of the knowledge and skills required for students by the SOL tests and for college and career readiness;

4. Maintaining records of students who drop out of school, including their reasons for dropping out and actions taken to prevent these students from dropping out;

5. Notifying the parents of rising eleventh-grade and twelfth-grade students of:

a. The number of standard and verified units of credit required for graduation; and

b. The remaining number of such units of credit the individual student requires for graduation;

6. Maintaining a current record of licensure, endorsement, and in-service training completed by staff; and

7. Maintaining records of receipts and disbursements of all funds handled. These records shall be audited annually by a professional accountant approved by the local school board.

All of the records, reports, and other information maintained by the public virtual school related to these documents, student scholastic records, and any other record or document maintained by the public virtual school shall be made available as may be necessary to the school board, superintendent, and school board employees.

M. Public virtual schools shall provide all policies and procedures unique to enrollment and matriculation in the public virtual school to parents prior to enrollment and post such information for the public on the school division's website.

N. Public virtual schools shall develop policies and procedures regarding the monitoring of student attendance, notification of parents and students regarding attendance issues and related disciplinary actions, and maintenance of records of attendance. This information shall be provided to parents prior to enrollment.

O. Information regarding student accountability and assessment shall be provided to the parents prior to enrollment. Public virtual schools shall develop policies and procedures to ensure that each student shall be assessed annually to determine what remediation and other support structures are needed to help the student achieve academic success. As determined by the school division, traditional and nontraditional assessments, such as state assessments and portfolios, may be used as part of this annual assessment process.

Titles of Regulations: 8VAC20-670. Regulations Governing the Operation of Private Day Schools for Students with Disabilities (repealing 8VAC20-670-10 through 8VAC20-670-440).

8VAC20-671. Regulations Governing the Operation of Private Schools for Students with Disabilities (adding 8VAC20-671-10 through 8VAC20-671-780).

Statutory Authority: §§ 22.1-16 and 22.1-321 of the Code of Virginia.

Effective Date: August 26, 2015.

Agency Contact: John Eisenberg, Assistant Superintendent for Special Education and Student Services, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 786-8079 or email john.eisenberg@doe.virginia.gov.

Summary:

In response to Chapter 873 of the 2008 Acts of Assembly, the regulatory action repeals the Regulations Governing the Operation of Private Day Schools for Students with Disabilities (8VAC20-670) and creates a new chapter, Regulations Governing the Operation of Private Schools for Students with Disabilities (8VAC20-671), to address all applicable requirements for both private day schools and education programs in residential facilities, including group homes. The new chapter clarifies provisions for obtaining a license to operate, the management and conduct of schools, and the standards for programs offered by schools. Requirements of the new chapter include (i) programs of instruction that promote individual student academic achievement in the essential academic disciplines, (ii) development of policies and procedures by schools to ensure safe learning environments for and the protection of children in their care, and (iii) a change in the amount of the required guaranty instrument.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 671
REGULATIONS GOVERNING THE OPERATION OF PRIVATE SCHOOLS FOR STUDENTS WITH DISABILITIES

8VAC20-671-10. Definitions.

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 [ licensing agency 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. [ (34 CFR 300.8(c) (1)) ]

[ "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 [ (i) ] interfere with the learning of students with disabilities or with the learning of others or (ii) [ behaviors that ] require disciplinary action.

[ "Behavioral support" means those principles and methods employed by a school to help a student achieve positive behavior and to address and correct a student's behavior in a constructive and safe manner in accordance with written policies and procedures governing program expectations, educational and treatment goals, safety and security, and the student's Individualized Education Program (IEP) or Individual Instruction Plan (IIP). ]

"Board" means the State Board of Education [ , which has general supervision of the public school system ].

"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(s) 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(s) 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(s) or eligible student understands that the granting of consent is voluntary on the part of the parent(s) 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 [ their its ] agreement.

"Controlled substance" means a drug or other substance identified under Schedules I, II, III, IV, or V [ in § 202(c) ] of the Controlled Substances Act, 21 USC § 812(c). [ (34 CFR 300.530 (i)(1)) ]

"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(s) 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. [ (34 CFR 300.8(c)(3)) ]

"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. [ (34 CFR 300.8(c)(3)) ]

"Department" means the Virginia Department of Education.

"Developmental delay" means a disability affecting a child age two by September 30 through six, inclusive: [ (34 CFR 300.8(b) and 34 CFR 300.306(b)) ]

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). [ § 22.1-213 of the Code of Virginia; 34 CFR 300.8(a)(1) and 34 CFR 300.8(a)(2)(i) and (ii)). ]

"Education records," [ also known as scholastic records, ] mean 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 parent(s) 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: [ (34 CFR 300.8(c)(4)) ]

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 [ by the Regulations Governing Special Education Programs for Children with Disabilities in Virginia 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). [ (34 CFR 300.8(c)(5)) ]

"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 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. [ (34 CFR 300.22) ]

"Individualized Instruction Plan" or "IIP" means a written statement [ (plan) ] 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. [ (34 CFR 300.8(c)(6)) ]

"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 state ] Superintendent of Public Instruction that [ verifies authorizes ] approval to operate a school for students with disabilities [ and that indicates the status of the school regarding compliance with applicable regulations ].

[ "Licensing agency" means the Virginia Department of Education.

"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. [ (34 CFR 300.8(c)(7) ]

"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). [ (34 CFR 300.8(c)(8)) ]

"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. [ (34 CFR 300.8(c)(9) ]

"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 [ (§ 22.1-213.1 of the Code of Virginia) ]:

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 [ 2 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 [ 8VAC20-81-80 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 or persons 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 or persons 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. [ (Board of Education's Guidelines for the Development of Policies and Procedures for Managing Student Behaviors in Emergency Situations)

"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 [ his parent(s) the parent ].

"Publicly placed student" means a student placed in a private school for students with disabilities by a local school division [ or, family assessment and planning team under the ] [ Comprehensive Children's ] Services Act [ team, ] or [ by ] court order.

"Qualified personnel" or "qualified staff" means personnel who have met [ Virginia Department of Education approved or recognized the state-approved or state-recognized ] certification, licensing, [ registration, or other comparable requirements that apply to the area in which the individual is providing special education or related services. In addition, the professional must meet other state agency requirements for such professional service and Virginia licensure requirements as designated by Virginia law or regulations 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 [ includes 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 [ ) ]. [ (§ 22.2-213 of the Code of Virginia; 34 CFR 300.34(a) and (b)) ]

"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 [ , ]" [ "school," ] 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 severe disability, ] a specific learning disability, a speech or language impairment, a traumatic brain injury, or a visual impairment including blindness. [ (§ 22.1-319 of the Code of Virginia) ]

"Seclusion" means the confinement of a student alone in a room from which the student is physically prevented from leaving. [ ( Board of Education's Guidelines for the Development of Policies and Procedures for Managing Student Behaviors in Emergency Situations)

"Section 504" means that section of the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended, which is designed to eliminate discrimination on the basis of disability in any program or activity receiving federal financial assistance. ]

"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. [ There is no cost to the parent(s) for special education for a child who is placed in a school for students with disabilities by a school division, the Department of Social Services, or court order. (§ 22.1-213 of the Code of Virginia; 34 CFR 300.39) ]

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: [ (34 CFR 300.39(b)(3)) ]

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. [ (§ 22.1-213 of the Code of Virginia; 34 CFR 300.8(c)(10)) ]

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 and/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. [ (34 CFR 300.8(c)(11)) ]

"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 [ cautions 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 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 [ State 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. [ (Board of Education's Guidelines for the Development of Policies and Procedures for Managing Student Behaviors in Emergency Situations) ]

"Traumatic brain injury" means an acquired injury to the brain caused by an external physical force, 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 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. [ (34 CFR 300.8(c)(12)) ]

"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. [ (34 CFR 300.8(c)(13)) ]

"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.

8VAC20-671-20. Exemptions.

This chapter shall not apply to any of the following [ at § 22.1-320 of the Code of Virginia ]:

1. Any school that is licensed or approved pursuant to other statutes of the Commonwealth;

2. Any public or private high school accredited or recognized by the Board of Education that has offered or may offer programs for students with disabilities covered in this chapter [ , ] if any tuition, fees, and charges made by the school are collected in accordance with the regulations prescribed by the governing body of such school;

3. Tutorial instruction given in a private home or elsewhere as supplemental to regular classes for students enrolled in any public or private school or in preparation of an individual for an examination for professional practice or higher education;

4. A program through which persons with disabilities are provided employment and training primarily in simple skills in a sheltered or protective environment; [ or ]

5. Any privately owned or operated preschool, or elementary, middle, or secondary school that operates primarily to provide educational services to students without disabilities, although the school may serve children with disabilities in a regular academic setting [ ; or

6. Any private school for students with disabilities that operates in or on the premises of an elementary, middle, or secondary public school in a regular school setting during a typical school day ].

8VAC20-671-30. Licenses generally.

A. The Board of Education has established general requirements for a license to operate a private school for students with disabilities and has authorized the Superintendent of Public Instruction to issue licenses. The following applies in accordance with § 22.1-323 of the Code of Virginia:

1. No person shall open, operate, or conduct any school for students with disabilities in this Commonwealth without a license to operate.

2. A license to operate shall be restricted to the disability categories specifically indicated on the license, which may include one or more of the disability categories in the definition of a school for students with disabilities in this chapter.

3. A license to operate may be issued for a period of up to three successive years.

4. The term of a school's license may be reduced at any time during the licensure period based on a change in the school's compliance with these requirements.

5. A license to operate shall be prominently displayed on the premises of the school in a place open for inspection by any interested person during the hours of operation.

6. A license to operate shall be restricted to the approved conditions as printed on the license. Such conditions include, but are not limited to, the maximum number of students that can be enrolled, the disability category or categories of students that can be served, [ and the ] age range and gender [ , and grade levels ].

B. An individual seeking to operate a school for students with disabilities shall file an application with the [ licensing agency department ].

[ C. The department may make exception to the requirements of this chapter for good cause. ]

8VAC20-671-40. Advertising.

The following provisions consistent with [ § 22.1-323 § 22.1-325 ] of the Code of Virginia regarding advertisement of a school shall apply:

1. No school may use the seal of the Commonwealth in any advertisement, publication, or document, including diplomas, certificates, and other awards.

2. The advertisement of a school shall be in a form and manner that is free from misrepresentation, deception, or fraud and shall conform to the following:

a. The complete school name as listed on the license to operate shall be used in all publicity, publications, or promotions or for marketing purposes.

b. Advertisement shall not expressly or by implication indicate by any means that the license to operate represents an endorsement by the Virginia Department of Education or the Board of Education.

c. No fraudulent or misleading statement shall be in print or nonprint about the school's admission policy, tuition and fees; programs and services; size and location; or any other information concerning the school.

d. Endorsements, commendations, or recommendations by students, individuals, manufacturers, business establishments, or organizations are prohibited except with their written consent and without any offer of financial compensation.

e. The accrediting agency shall be named [ , using its official title ] if accreditation is used [ , ] as part of a school's promotional materials.

3. Prospective applicants may advertise projected services and staff positions while in the application process but shall not misrepresent licensure status and shall not enroll students prior to receiving a license to operate from the Superintendent of Public Instruction.

8VAC20-671-50. Types of licenses.

The following shall apply consistent with [ § §§ 22.1-323, ] 22.1-323.1 [ , and 22.1-323.2 ] of the Code of Virginia:

1. A conditional license [ shall may ] be issued [ to a new school that demonstrates compliance with administrative and policy requirements but has not demonstrated compliance with all requirements of this chapter upon approval of an application to operate a school for students with disabilities not to exceed a period of six months ].

[ a. ] A conditional license may be renewed [ for a period of six months when a new school demonstrates compliance with administrative and policy requirements but has not fully demonstrated substantial compliance with requirements of this chapter ].

[ b. The issuance of a conditional license and any renewals thereof shall be for no longer a period than six successive months.

2. A provisional license may be issued to a school that has demonstrated an inability to maintain compliance with this chapter or other applicable regulations.

a. A provisional license may be issued at any time.

b. A provisional license may be renewed.

c. The issuance of a provisional license and any renewal thereof shall be for no longer a period than six successive months.

3. 2. ] An annual license may be issued under the following conditions and may be extended for a period not to exceed [ six 36 ] successive months:

a. A school [ applies for renewal provides notice for continued licensure ] while holding a conditional or provisional license.

[ b. When a school holds a provisional license and ] substantially meets the requirements of this chapter;

[ b. The licensing agency determines that a major violation has occurred that impacts the overall operation of the school; or ]

c. [ The When a ] school makes significant changes in its operation.

[ 4. 3. ] A triennial license shall be issued when a school [ : holds an annual or triennial license and substantially meets the requirements of this chapter. ]

[ a. Applies for renewal while holding an annual or triennial license; and

b. Substantially meets or exceeds the requirements of this chapter and other applicable regulations.

5. 4. ] The term of a school's license may be [ modified at any time during the licensure period based on a change in the school's reduced to provisional when the school has demonstrated an inability to achieve or maintain ] compliance with this chapter [ and or ] other applicable regulations.

[ a. A provisional license may be issued at any time.

b. A provisional license may be renewed.

c. The issuance of a provisional license and any renewal thereof shall be for no longer a period than six successive months. ]

8VAC20-671-60. Change in condition.

A. A condition of a license may be modified during the term of the license with respect to: capacity of the school or classrooms; disability category or categories of students served; age range [ of students ]; [ grade levels, ] change in location; change in services; change in ownership; merger of schools; and enrollment of day student(s) in a residential setting.

B. A change in a condition shall not be implemented prior to approval by the [ licensing agency department ]. [ The licensing agency shall respond to the request and provide approval or denial in 10 calendar days following the date the request was received.

C. A change in a condition may not be approved during a provisional or conditional licensure period. ]

8VAC20-671-70. License to operate is nontransferable.

A change of ownership occurs when control of a school changes from one owner to another. If there is a change in ownership, the following shall apply:

1. The licensee shall notify the [ licensing agency department ] at least 30 calendar days prior to the proposed change.

2. The new owner shall submit an initial application for a license to operate to the [ licensing agency department ] within 30 calendar days following the effective date of the change in ownership.

3. The school may operate under the existing license for 60 calendar days from the effective date of the change in ownership at which time a conditional license may be issued.

8VAC20-671-80. Penalty for noncompliance in obtaining a license to operate.

[ Failure to obtain a license to operate Operating ] a school for students with disabilities [ without a license ] shall result in the following penalties allowed in § 22.1-331 of the Code of Virginia:

1. Any person who opens, operates, or conducts a school without first obtaining a license to operate [ may shall ] be [ found ] guilty of a Class 2 misdemeanor.

2. Each day [ such person who permits ] the school [ remains to be ] open [ and operate ] without a license [ to operate, the owner or board of directors ] shall incur a separate offense.

3. The [ licensing agency department ] shall refer [ to the Office of the Attorney General any alleged or known violation of this chapter. The Office of the Attorney General shall refer the matter any person who opens, operates, or conducts a school for students with disabilities without a license ] to the [ appropriate ] Commonwealth's attorney [ of proper jurisdiction ].

8VAC20-671-90. [ Directory List ] of private schools for students with disabilities.

The [ licensing agency department ] shall maintain a [ directory list ] of schools holding valid licenses to operate that shall be available to the public [ (§ 22.1-332 of the Code of Virginia) ]. The [ directory shall identify other applicable state licensing agencies over the school and list ] may include additional information to inform the public about the school's operation.

8VAC20-671-100. Initial application.

To obtain a license to operate a school for students with disabilities, an application shall be filed with the [ Virginia ] Department of Education. A completed initial application shall include the following:

1. Complete name [ and with ] physical [ address and mailing addresses ] of the school;

2. Name and address of owners, controlling officials, and managing employees;

3. Evidence that the applicant has [ conducted a needs assessment assessed the community's need for a new school ];

4. Evidence of the applicant's compliance with the applicable regulations of the State Corporation Commission when the school is owned by a partnership or corporation;

5. Narrative description of building and scale [ drawing drawings ] or copy of all floor plans including room use and dimensions;

6. Certificate of occupancy with educational use group or other report from the appropriate government agency or agencies indicating that the location meets applicable zoning, building code, use permit, business license, fire safety, and sanitation requirements;

7. Copy of the deed, lease, or other legal instrument authorizing the school to occupy such location;

8. Proposed working budget for the year showing projected revenue and expenses for the first year of operation and a balance sheet showing assets and liabilities; a three-year financial plan; and documentation of sufficient operating capital or line of credit to carry the school through the first year of operation;

9. Original signed surety bond, irrevocable letter of credit, or certificate of deposit to protect the contractual rights of parents and students;

10. Schedule of tuition and other fees and the procedure for collecting and refunding tuition;

11. Copies of all proposed advertisements;

12. Description of the education program to include disability category or categories to be served, enrollment capacity, [ grade level or levels, ] age range, gender, and course offerings;

13. Listing of instructional resources and equipment;

14. Description of related services;

15. School's policy manual;

16. Proposed staffing and organizational chart;

17. Job description for each position;

18. Parent/student handbook;

19. Statement [ of regarding ] transportation services if the school provides transportation for students;

20. Statement regarding provision of student lunches;

[ 21. Description of the behavior management program; ] and

[ 21. 22. ] Any other information necessary to complete the application process.

8VAC20-671-110. Applicant commitments.

Each application for a license to operate a school for students with disabilities shall contain the following commitments:

1. To conduct the school in accordance with all applicable regulations of the board;

2. To permit the board or department to inspect the school or classes being conducted therein at any time and to make available to the board or department, when requested to do so, all information pertaining to the activities of the school required for the administration of this chapter, including its financial condition;

3. To advertise the school at all times in a form and manner that is free from misrepresentation, deception, or fraud and to conform to provisions of the board governing such advertising;

4. To ensure that all representations made by an agent of the school are free from misrepresentation, deception, or fraud and to conform to provisions of the board governing such advertising;

5. To display the current license to operate prominently where it may be inspected by students, visitors, and the board or department; and

6. To maintain all premises, equipment, and facilities of the school in an adequate, safe, and sanitary condition.

8VAC20-671-120. Assessment of application.

A. The [ licensing agency department ] shall evaluate each application within 60 calendar days from the date received and advise the applicant in writing of approval or deficiencies.

B. The applicant shall correct all deficiencies within 30 calendar days from the date of the written assessment of the application. The [ licensing agency department ] may grant an extension for a reasonable period of time.

C. [ Any application that has not been approved within the allotted time period shall be denied and returned to the applicant. The applicant may reapply for a license 90 calendar days following the date of the returned application. The department shall conduct a review of the character, reputation, and status with other licensing agencies, and the responsibility of the applicant before issuing a license. ]

D. The [ licensing agency department ] may require the applicant to [ appear before a review committee for meet with department staff before ] final approval of the application.

8VAC20-671-130. On-site inspection.

Before a license can be issued [ to an applicant ], the [ licensing agency department ] shall conduct an on-site inspection or [ equivalent virtual inspection review photographs or videos ] of the school building and grounds to determine its suitability for the operation of a school for students with disabilities.

8VAC20-671-140. Renewal of licenses.

[ A. Sixty calendar days prior to the expiration of a license to operate, the licensee shall submit to the licensing agency notification of intent for continued operation of the school.

B. A. ] The license of each school that continues to operate as such shall be renewed on or before the anniversary date set by the [ licensing agency department ].

[ C. B. ] Each license that has not been renewed in accordance with this chapter shall expire [ and a new license shall be obtained from the board before such school may continue to operate. A new application must be submitted to the licensing agency ].

8VAC20-671-150. Monitoring.

The [ licensing agency department ] shall:

1. Make at least one [ announced or ] unannounced visit during the effective dates of the license to operate for the purpose of monitoring the school's compliance with this chapter;

2. Notify relevant local governments and placing and funding agencies of health and safety or human rights violations.

3. [ Notify the appropriate public agencies when a school's licensure status is lowered to provisional;

4. ] Cooperate with other [ state ] licensing agencies [ , specifically, the Department of Social Services and the Department of Behavioral Health and Developmental Services, ] in fulfilling licensing responsibilities [ . The licensing agency shall notify relevant local governments and placing and funding agencies when a school's licensure status is lowered to provisional.; and

5. Re-examine findings of noncompliance in consultation with the school administrator when there is disagreement and amend any written report as appropriate in seven business days. ]

8VAC20-671-160. Complaint resolution procedures.

A. A complaint may be filed with the [ licensing agency department ] by any individual or organization and shall address an action that occurred not more than one year prior to the date the complaint is received by the [ licensing agency department ].

B. A complaint must provide a statement of some disagreement with procedures or process regarding any matter relative to this chapter or other applicable regulations.

C. Upon receipt of a complaint, the [ licensing agency department ] shall initiate an investigation to determine whether the school is in compliance with applicable laws and regulations in accordance with the following procedures:

1. Within seven business days of the receipt of a complaint, the [ licensing agency department ] shall provide written notification to each complainant and the private school.

a. The notification sent to the school shall include:

(1) A copy of the complaint;

(2) An offer of technical assistance in resolving the complaint;

(3) A statement that the school has the opportunity to propose a resolution of the complaint;

(4) A request that the school submit within 10 business days of receipt of the letter of notification either:

(a) Written documentation that the complaint has been resolved; or

(b) If the complaint was not resolved, a written response including all requested documentation.

2. The [ licensing agency department ] shall review the complaint and the school's response and determine the need for any further investigation or corrections.

3. The [ licensing agency department ] shall notify appropriate agencies of serious violations.

4. During the course of the investigation, the [ licensing agency department ] shall:

a. Conduct an investigation of the complaint that shall include a complete review of all relevant documentation and may include interviews with appropriate individuals and an independent on-site investigation, if necessary.

b. Consider all facts and issues presented and the applicable requirements specified in this chapter or other applicable regulations.

c. Make a determination of compliance or noncompliance on each issue in the complaint based upon the facts and applicable regulations and notify the parties in writing of the findings and the bases for such findings. The [ licensing agency department ] has 60 calendar days after the written complaint is received to carry out the investigation and to [ resolve the complaint issue a letter of finding ]. An extension of the 60 calendar day time limit may occur if exceptional circumstances exist with respect to a particular complaint.

d. Ensure that the final decision is effectively implemented, if needed, through technical assistance activities, negotiations, and corrective actions to achieve compliance.

e. Notify the parties in writing of any needed corrective actions and the specific steps that shall be taken by the school to bring it into compliance with applicable timelines.

[ E. D. ] Parties to the complaint procedures shall have the right to appeal the final decision to the [ licensing agency department ] within 30 calendar days of the issuance of the decision.

[ F. E. ] When the school develops a plan of action to correct the violations, such plan shall include timelines to correct violations not to exceed 30 business days unless circumstances warrant otherwise. The plan of action shall include a description of all [ proposed ] changes [ contemplated ] and shall be subject to approval of the [ licensing agency department ].

[ G. F. ] If the school does not come into compliance within the period of time set forth in the notification, the [ licensing agency department ] may reduce or revoke the school's license to operate.

8VAC20-671-170. Denial, revocation, or suspension of license.

A. The [ superintendent board ] may refuse to issue or renew a license to operate or may revoke or suspend a license issued to any school pursuant to this chapter for the following causes [ (§ 22.1-329 of the Code of Virginia) ]:

1. Violating any provision of this chapter or regulation of the board;

2. Furnishing false, misleading, or incomplete information to the board or department or failure to furnish information requested by the board or department;

3. Violating any commitment made in an application for a license;

4. Presenting either by the school or by any agent of the school to prospective students information relating to the school which is false, misleading, or fraudulent;

5. Failing to provide or maintain premises or equipment in a safe and sanitary condition as required by law;

6. Making any false promises through agents or by advertising or otherwise of a character likely to influence, persuade, or induce enrollments;

7. Paying a commission or valuable consideration to any person for any act of service performed in willful violation of this chapter;

8. Failing to maintain financial resources adequate for the satisfactory conduct of courses of instruction offered or to retain a sufficient or qualified instructional staff;

9. Demonstrating unworthiness or incompetency to conduct the school in a manner calculated to safeguard the interests of the public;

10. Failing within a reasonable time to provide information requested by the board or department as a result of a formal or informal complaint to or by the board or department that would indicate a violation of these requirements;

11. Attempting to use or employ any enrolled students in any commercial activity whereby the school receives any compensation whatsoever without reasonable remuneration to the student, except to the extent that employment of students in such activities is necessary or essential to their training and is permitted and authorized by the board; or

12. Engaging in or authorizing any other conduct, whether of the same or of a different character from that specified in this section, that constitutes fraudulent or dishonest dealings.

[ B. The provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall be applicable to proceedings under this section. ]

8VAC20-671-180. Summary or final order of suspension.

[ The provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall be applicable to proceedings under this section. ] In compliance with § 22.1-329 of the Code of Virginia, the following shall apply:

1. In addition to the authority for other disciplinary actions provided in this chapter, the Superintendent of Public Instruction may issue a summary order of suspension of a license of a residential or day school for students with disabilities in conjunction with any proceeding for revocation, denial, or other action when conditions or practices exist in the school that pose an immediate and substantial threat to the health, safety, and welfare of the students who are residing or attending the school and the Superintendent of Public Instruction believes the operation of the school should be suspended during the pendency of such proceeding.

2. The summary order of suspension shall take effect upon its issuance and shall be served on the licensee or its designee as soon as practicable thereafter by personal service and certified mail, return receipt requested, to the address of record of the licensee. The order shall state the time, date, and location of a hearing to determine whether the suspension is appropriate. Such hearing shall be held no later than three business days after the issuance of the summary order of suspension and shall be convened by the Superintendent of Public Instruction or designee.

3. After such hearing, the Superintendent of Public Instruction may issue a final order of summary suspension or may find that such summary suspension is not warranted by the facts and circumstances presented. A final order of summary suspension shall include notice that the licensee may appeal the Superintendent of Public Instruction's decision to the appropriate circuit court no later than 10 days following issuance of the order. The sole issue before the court shall be whether the Superintendent of Public Instruction had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceeding. The concurrent revocation, denial, or other proceeding shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.

4. The willful and material failure to comply with the summary order of suspension or final order of summary suspension shall be punishable as a Class 2 misdemeanor. The Superintendent of Public Instruction may require the cooperation of any other agency or subdivision of the Commonwealth in the relocation of students who are residents of a home or facility whose license has been summarily suspended pursuant to this section and in any other actions necessary to reduce the risk of further harm to students.

8VAC20-671-190. Timeline for correction of unsatisfactory conditions.

In compliance with § 22.1-330 of the Code of Virginia, the board or department:

1. May, upon its own motion, and shall, upon the verified complaint in writing of any person setting forth facts that [ , ] if proved [ , ] would constitute grounds for refusal, suspension, or revocation of a license, investigate the actions of any applicant for or any person or persons holding or claiming to hold a license to operate [ a school ].

2. Before refusing to renew, revoking, or suspending any license, may grant such period of time as it deems reasonable to correct any unsatisfactory condition.

8VAC20-671-200. Governing body.

A. Each school shall use its complete name as [ listed printed ] on the license to operate for all publicity, publications, promotions, or marketing purposes.

B. Any governing board, body, entity, or person to whom it delegates the legal responsibilities and duties of the licensee shall be clearly identified.

8VAC20-671-210. Responsibilities of the licensee.

The licensee shall:

1. Appoint an individual(s) to whom it delegates the authority and responsibility to assume the administrative direction of the school. The appointment shall be in writing.

2. Develop and implement a written decision-making plan that shall include provision for a staff person with the qualifications of the school administrator or education program director to be designated to assume the temporary responsibility for the operation of the school in the absence of the school administrator. The plan shall include a current organizational chart.

3. Ensure that staff positions and responsibilities meet the needs of the population served.

4. Develop a written statement of the objectives of the school including a description of the target population and the program offerings.

5. Develop and implement written policies and procedures to monitor and evaluate the effectiveness of the education program on a systematic and ongoing basis and implement improvements when the need is determined.

6. Ensure compliance with applicable child labor laws.

7. Develop a written policy prohibiting the consumption of tobacco products, [ illegal ] drugs, and alcohol or being under the influence of intoxicating or hallucinogenic agents while on campus and at school-sponsored [ student ] activities.

8. Require as a condition of employment that any applicant who accepts employment full-time or part-time, permanent or temporary, [ including interns and ] volunteers [ to on a regular basis and will be alone with a student in the performance of his duties, or anyone who provides contractual services, including services of a student intern, on a regular basis and will be alone with a student in the performance of his duties shall ] submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant's fingerprints through [ Virginia's the ] Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant. [ In addition, where the applicant has resided in another state within the last five years, the school shall as a condition of employment determine if there are any founded complaints of child abuse or neglect in such state(s) pursuant to §§ 22.1-296.3 and 22.1-296.4 of the Code of Virginia.

Anyone who is hired or is approved to provide volunteer services, contractual services, or services of a student-intern on a regular basis and will be alone with students cannot begin working with children until the criminal history background check has been received by the school. ]

9. Require as a condition of employment that any applicant who accepts employment requiring direct contact with students, whether full-time or part-time, permanent or temporary, [ including interns and ] volunteers [ on a regular basis and will be alone with a student in the performance of his duties; or anyone who provides contractual services, including services of a student intern on a regular basis and will be alone with a student in the performance of his duties, shall ] provide written consent and necessary personal information for the school to obtain a search of the registry of founded complaints of child abuse and neglect maintained by the Department of Social Services [ pursuant to § 63.2-1515 of the Code of Virginia ]. [ Where the applicant has resided in another state within the last five years, the school shall as a condition of employment, determine if there are any founded complaints of child abuse or neglect in such state(s) pursuant to §§ 22.1-296.3 and 22.1-296.4 of the Code of Virginia.

a. Anyone who has not submitted to a search of the registry of founded complaints of child abuse and neglect maintained by the Department of Social Services shall not be permitted to work alone with children.

b. The results of the search of the registry must be received prior to permitting an applicant to work alone with children. ]

10. Notify the [ licensing agency department ] within five calendar days of any change in administration or newly appointed individual responsible for the day-to-day administration or operation of the school.

11. Ensure that all staff members receive annual professional development related to their job responsibilities.

12. Report to the [ licensing agency department ] within 10 business days lawsuits [ , settlements, or criminal charges relating to the operation of the school against or settlements with the licensee relating to the health and safety or human rights of students and any criminal charges against any staff that may be related to the health and safety or human rights of students ].

13. Develop and implement an accessible policy and procedures to handle [ grievances school related complaints ] from students, parents, and employees. [ Schools are required to provide written notification of the right to file a complaint with the department's private school licensure office.

14. The school shall have a written policy and procedure that the school does not discriminate according to state and federal law. ]

8VAC20-671-220. Fiscal accountability.

A. The licensee shall prepare at the end of each fiscal year:

1. An operating statement to include a month-to-month accounting of revenue and expenses for the fiscal year just ended;

2. A working budget showing projected revenue and expenses for the next fiscal year that gives evidence of sufficient funds to operate; and

3. A balance sheet showing assets and liabilities for the fiscal year just ended.

B. There shall be a system of financial recordkeeping that shows a separation of the school's accounts from all other records.

C. There shall be written policies and procedures that address the day-to-day handling of the school's funds.

D. The [ licensing agency department ] reserves the right to call for one of these two types of statements:

1. An audited financial statement certified by an outside independent certified public accountant in accordance with standards established by the American Institute of Certified Public Accountants; or

2. A financial statement that has been reviewed by an outside independent certified public accountant in accordance with principles established for reviews by the American Institute of Certified Public Accountants.

8VAC20-671-230. Protection of contractual rights.

In compliance with § 22.1-324 of the Code of Virginia, provisions for the protection of contractual rights shall include the following:

1. With each application, the applicant shall submit and maintain a guaranty instrument payable to the Commonwealth of Virginia to protect the contractual rights of students and other contracting parties.

2. The guaranty instrument shall be based on the school's approved capacity. A [ minimum ] guaranty of $10,000 for up to 25 students and $5,000 for each additional 25 students shall apply.

3. In the event a guaranty instrument is terminated, the license to operate will terminate within 30 calendar days if a replacement bond or other instrument is not filed with the [ licensing agency department ].

4. If a school collects no advance tuition other than equal monthly installments or receives payment after services have been rendered, the school may apply to the [ licensing agency department ] for exemption from the guaranty requirements.

8VAC20-671-240. Insurance.

A. The licensee shall maintain liability insurance covering the premises and the school's operation.

B. The licensee shall maintain liability insurance on all vehicles used to transport students, including vehicles owned by staff. [ The school shall obtain written consent from the parent to transport a student in a staff member's personal vehicle. ]

C. The members of the governing body and staff who are authorized to handle school or [ students' student ] funds shall be bonded [ or indemnified against employee dishonesty ].

8VAC20-671-250. Fundraising.

[ A. ] Written consent of the [ parent(s) or legal guardian and of a child age 14 or older parent ] shall be obtained before [ participating allowing a student to participate ] in any school fundraising activity.

[ B. No student shall be forced to participate in any school fundraising activity. ]

8VAC20-671-260. Relationship to the [ licensing agency department ].

The licensee shall make information available to the [ licensing agency department ] upon the requested due date in order to make a timely determination of compliance with this chapter and other applicable regulations and statutes. The [ licensing agency department ] may alter the term of a license if the school fails to comply in a reasonable time period.

8VAC20-671-270. Personnel policies and procedures.

A. The licensee shall have written personnel policies and procedures that include, but are not limited to, job qualifications, job descriptions, [ staff ] supervision, evaluation, [ grievance dispute resolution ], and termination.

1. The licensee shall develop and implement written policies and procedures that persons appointed or designated to assume the responsibilities of each position possess the education, experience, [ knowledge, ] skills, and abilities specified in the job description.

2. The licensee shall make written personnel policies and procedures accessible to each employee.

B. The licensee shall maintain a current organizational chart of all full-time and part-time positions.

8VAC20-671-280. Job qualifications.

A person who assumes or is designated to assume the responsibilities of a position or any combination of positions described in this chapter shall meet the qualifications of the position, comply with all applicable regulations for each function, and demonstrate a working knowledge of the policies and procedures applicable to the position.

8VAC20-671-290. Job descriptions.

A. There shall be a written job description for each position that includes job title; duties and responsibilities; job title of the immediate supervisor; and minimum education, experience, [ knowledge, ] skills, and abilities required for entry-level performance of the job.

B. A copy of the job description shall be given to each person assigned to a position at the time of employment or assignment.

8VAC20-671-300. School administrators.

A. The licensee shall designate [ one or more individuals an individual(s) who is a graduate of an accredited college or university and is ] responsible for the administrative operation of the school [ who serves as the instructional leader and is responsible for effective school management that promotes positive student achievement, and a safe and secure environment in which to teach and learn ]. [ This individual may also serve as the instructional leader. ]

B. [ As the instructional leader, the The ] school administrator [ is responsible for ensuring that students are provided an opportunity to learn and ] shall:

1. Protect the academic instructional time from unnecessary interruptions [ and disruptions and enable the professional teaching staff to spend the maximum time possible in the teaching/learning process by keeping to a minimum clerical responsibility and the time students are out of class ];

2. Seek to maintain a safe and secure school environment;

3. Involve the [ school ] staff [ of the school ] in identifying [ the types of ] staff development [ needed needs ] to improve student achievement and ensure [ that the ] staff [ participate in those activities participation ];

4. Analyze classroom practices and methods for improvement of instruction;

5. Ensure [ that students' student ] education records are maintained [ and that criteria used in making placement and promotion decisions, as well as any instructional interventions used to improve the student's performance, are included in the record confidentially ]; and

6. Monitor and evaluate the quality of instruction [ , provide staff development, and provide support that is designed and provide supports as needed ] to improve instruction.

C. The instructional leader shall hold a valid five-year renewable postgraduate professional license issued by the board with an endorsement in school administration and supervision or special education and have at least three years of experience working with students with disabilities.

D. The instructional leader or designee shall at all times be on the premises of the school while the school is in operation.

E. All staff on duty must know who is responsible for the administration of the school at any given time.

8VAC20-671-310. Teachers and staffing.

A. Each teacher shall meet the requirements of the [ Board of Education's ] Licensure Regulations for School Personnel (8VAC20-22).

[ 1. Schools where students are instructed by content or grade level endorsed teachers shall have available appropriately endorsed special education teachers to case manage IEPs and to provide disability specific technical assistance and instruction.

2. Schools offering only self-contained classroom instruction shall have teachers endorsed in either special education general curriculum or special education adapted curriculum depending on the functioning levels of the students. ]

B. Staffing shall be in accordance with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81) in the following settings:

1. A student with an Individualized Education Program (IEP) may be instructed with students without disabilities, as appropriate, and in accordance with the IEP.

2. A student with an IEP may receive services with children with the same disability or with children with different disabilities.

C. Teacher personnel assignments shall be in accordance with Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

1. General education qualified personnel who are knowledgeable about the students and their special education may implement special services in collaboration with special education personnel.

2. Special education services include those services provided directly to the student and those provided indirectly.

D. Teacher caseloads shall be assigned in accordance with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

1. If children with disabilities in a single building receive academic content area instruction from multiple special education teachers, the teachers' caseloads shall be determined by using a building average.

2. When special education personnel are assigned to provide services for students who do not have a disability under this chapter or are assigned to administrative duties, there shall be a reduction in the caseload specified in proportion to the percentage of school time on such assignment.

3. Special education personnel may be assigned to serve children who are not eligible for special education and related services as long as they hold appropriate licenses and endorsements for such assignments.

E. Staffing for early childhood special education shall be in accordance with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

1. Children of preschool ages (two to five, inclusive) who are eligible for special education may receive early childhood special education.

2. Students receiving early childhood special education may receive services together with other preschool-aged children with the same or with different disabilities.

F. A school may offer for consideration of approval an alternative staffing plan in accordance with the department's procedures. The department may grant approval for alternative staffing levels [ and teaching assignments ] upon request from private schools for students with disabilities seeking to implement innovative programs that are not consistent with the staffing levels outlined in the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

8VAC20-671-320. Substitute teachers.

A. No substitute teacher shall be used to fill a vacant teaching position for more than 90 teaching days in such vacancy during one school year.

B. Substitute teachers shall be at least 18 years of age, hold a high school diploma or a [ general educational diploma General Educational Development ] (GED) [ certificate ], have two years of full-time postsecondary education or two years of [ successful ] work experience with children [ with disabilities or equivalent, and attend orientation to the school's policies and procedures ].

[ C. A substitute teacher employed to fill a teacher vacancy shall receive orientation to the school's policies and procedures. ]

8VAC20-671-330. Support staff.

A. School support personnel, including contractual service providers, shall meet the Board of Education's Licensure Regulations for School Personnel (8VAC20-22) or the requirements of another state or national accrediting agency.

B. Paraprofessionals and other ancillary staff shall be at least 18 years of age (21 years of age preferred), [ at a minimum ] hold a high school diploma or [ a general educational diploma General Educational Development ] (GED) [ certificate ], have two years of [ full-time successful ] work experience with children or completed two years of coursework in a related field, [ complete orientation conducted by the school administrator or designee regarding school policies and procedures and characteristics of students served, and work under the supervision of qualified staff or upon employment complete within 60 calendar days of hire training specific to the assigned student population and job duties as they relate to the academic and behavioral progress of students. Such training shall include individualized instruction and student behavior management, including principles and strategies to reduce interfering behavior, build positive skills, and enhance communication of students with autism spectrum disorders ].

C. No support staff shall be used as replacement for teachers or related service staff unless they meet the qualifications of the position.

D. Support staff who do not meet licensure or certification requirements shall not be given misleading work titles or titles that infer [ that ] they meet required credentials.

[ E. Paraprofessionals shall work under the supervision of qualified professional staff. ]

8VAC20-671-340. Staff supervision.

The licensee shall develop and implement written policies and procedures regarding the supervision of employees [ , full-time and part-time, ] and all other [ individuals working with children, including volunteers and interns staff including volunteers and student interns working in the school building or on school grounds ].

8VAC20-671-350. Staff development.

A. Within seven calendar days following [ their staff's ] begin date, each staff member responsible for working with students shall receive orientation of the school's philosophy, goals and objectives; duties and responsibilities of their position; and the school's policy and procedures for behavior intervention.

B. Within 14 calendar days following [ their staff's ] begin date [ and before an individual is alone supervising students ], all staff shall receive emergency preparedness and response training that shall include: alerting emergency personnel and sounding alarms; implementing evacuation procedures with particular attention to students with special needs; using, maintaining, and operating emergency equipment; accessing emergency information for students including medical information; and utilizing community support services.

C. Within 14 calendar days following [ their staff's ] begin date, [ all ] staff shall receive professional development on confidentiality; the school's administrative decision-making plan; and policies and procedures [ , including prohibited actions, ] that are applicable to their positions, duties, and responsibilities.

D. Within 30 calendar days following [ their staff's ] begin date, [ all ] staff shall receive training on the school's policy and procedures, including standard precautions, child abuse and neglect, [ and ] mandatory reporting [ , maintaining appropriate professional relationships and interactions among staff and students, and suicide prevention ].

[ E. Within 30 calendar days following their begin date, all staff responsible for medication administration shall have successfully completed an approved medication training program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medications. Staff shall meet this requirement before administering any medication to students and shall receive annual retraining.

F. E. ] All staff shall receive annual professional development and refresher [ in on the school's policies and procedures on standard precautions; ] emergency preparedness and response to include alerting emergency personnel and sounding alarms; implementing evacuation procedures with particular attention to students with special needs; [ and ] using, maintaining, and operating emergency equipment [ ; and accessing emergency information for students and staff including medical information and utilizing community supports ].

[ G. F. ] All staff shall receive annual professional development and refresher on behavior supports, child abuse and neglect, [ and ] mandatory reporting [ , maintaining appropriate professional relationships and interactions among staff and students, and suicide prevention ].

[ H. Each full-time staff person shall complete an additional 15 hours of annual training applicable to his job duties G. Each staff who works directly with students shall annually receive 15 hours of professional development related to student progress and academic achievement that is applicable to the population served and to their job duties ].

8VAC20-671-360. Personnel records.

A. Separate up-to-date personnel records shall be maintained for each full-time and part-time employee, student intern, and volunteer for whom background investigations are required by Virginia statute. Content of personnel records of volunteers, student interns, and contractual service providers shall include, at a minimum, documentation of compliance with requirements of Virginia laws regarding child protective services and criminal history background investigations.

B. [ A record Records ] shall be maintained for each staff to include:

1. A completed employment application or other documentation providing the individual's name, address, and telephone number;

2. Documentation of qualifications [ , including educational background and professional licensure or certification ];

3. Employment history;

4. Written references or notations of oral references;

5. Reports of required [ health examinations tuberculosis certificate ];

6. Annual performance evaluations;

7. Date of employment for each position held and date of separation;

8. Documentation of compliance with requirements of Virginia laws regarding child protective services and criminal history background investigations;

9. [ Documentation of Driving record verification from the ] Department of Motor Vehicles [ checks ] and a current copy of the driver's license for [ all ] staff who transport students;

10. Documentation of all training required by this chapter and any other training or professional development received by individual staff; and

11. A current job description.

C. All personnel records shall be maintained confidentially and retained in their entirety for a minimum of three years after staff's separation from the school.

8VAC20-671-370. School facilities and safety.

A. Each school shall be maintained in [ a manner ensuring ] compliance with the Virginia Uniform Statewide Building Code (13VAC5-63). [ Each school shall

1. Maintain B. Each school shall maintain ] a physical plant that is accessible, barrier free, safe, and clean [ ;. ]

[ 2. Provide 50 net square feet per occupant space for classrooms and suitable C. Each school shall provide safe and adequate instructional areas, ] space for administrative staff, pupil personnel services, library and media services, and physical education [ with consideration given to safety;. Schools established after the effective date of these regulations and classrooms added to existing buildings shall provide at least 50 square feet of classroom or instructional area per student excluding classroom fixtures. ]

[ 3. Provide D. Each school shall provide ] adequate, safe, and properly equipped classrooms [ and instructional areas, and where appropriate ], laboratories, play areas, and dining areas that meet the needs of students and instruction [ ; and. ]

[ 4. Provide E. Each school shall provide ] space for safe storage of items such as first aid equipment, medication, household supplies, school supplies, and equipment.

[ B. F. ] After the initial application, the school shall document annually that buildings and equipment are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51) and maintain records of regular safety, health, and fire inspections conducted and certified by local health and fire departments.

[ C. G. ] Building plans and specifications for new construction, change in use of existing buildings, and any structural modifications or additions to existing buildings shall be submitted in advance to the [ licensing agency department ] for approval.

[ D. H. ] Animals allowed on the premises shall be tested, inoculated, and licensed as required by law.

[ E. Smoking shall be prohibited at all times and in all school buildings, on all school grounds, and during off campus school-sponsored activities.

F. I. ] Swimming pools shall be inspected annually by the state or local health authorities or by a swimming pool business.

[ G. J. ] There shall be a written policy concerning [ the provision of ] safeguards for [ aquatic-related activities to include supervision by a certified lifeguard water-related activities and a provision that a certified lifeguard supervises all swimming activities ].

[ H. K. ] There shall be a written policy regarding safeguards for school-sponsored activities including adventure and wilderness activities.

[ I. L. ] There shall be [ an electronic two-way a ] communication system available to staff at all times in the classroom and during school-sponsored activities.

[ M. Schools shall have safeguards to be able to identify any visitor in the school building and on the premises during the school day. ]

8VAC20-671-380. Contingency plans.

A. A school shall have contingency plans for [ medical ] emergencies that include staff certification in cardiopulmonary resuscitation (CPR), [ abdominal thrust (Heimlich maneuver), and ] emergency first aid [ , and medication administration ].

B. The school administration shall ensure that the school has:

1. Written procedures to follow in emergencies such as fire, injury, illness, and violent or threatening behavior. Contingency plans should be developed with the assistance of state or local public safety authorities. Such plans shall be outlined in the student handbook and [ discussed reviewed ] with staff and students during the first week of each school year;

2. Space for the proper care of students who become ill; and

3. A written procedure for responding to violent, disruptive, or illegal activities by students on school property or during a school-sponsored activity.

C. Each school shall [ annually ] have at least [ three one ] tornado [ drills every school year in order that students may be practiced in such drills drill, at least one earthquake drill, and at least two lockdown drills, one in September and one in January ].

D. The school shall have a written emergency preparedness and response plan for all locations that addresses:

1. Documentation of contact with the local emergency coordinator to determine (i) local disaster risks, (ii) communitywide plans to address different disasters and emergency situations, and (iii) assistance, if any, that the local emergency management office will provide to the school in an emergency.

2. Analysis of the school's capabilities and potential hazards, including natural disasters, severe weather, fire, flooding, workplace violence [ , intruder, hostage situation, ] or terrorism, missing persons, riot, severe injuries, or other emergencies that would disrupt the normal course of service delivery.

3. Written emergency management policies outlining specific responsibilities for provision of administrative direction and management of response activities; coordination of logistics during the emergency; communications; life safety of students, employees, contractors, student interns, volunteers, and visitors; property protection; community outreach; and recovery and restoration.

4. Written emergency response procedures for assessing the situation; protecting students, employees, contractors, student interns, volunteers, and visitors; [ protecting ] equipment and education records; and restoring services.

5. Emergency procedures, which shall address:

a. Communicating with employees, contractors, [ volunteers, student interns, ] and community responders;

b. Warning and notification of students;

c. Providing emergency access to secure areas and opening locked doors;

d. Conducting evacuations to emergency shelters or alternative sites and accounting for all students;

e. Relocating students and staff, if necessary;

f. Notifying family members and legal guardians;

g. Alerting emergency personnel and sounding alarms; and

h. Locating and shutting off utilities when necessary.

6. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, designated escape routes, and list of major resources such as local emergency shelters.

7. Schedule for testing the implementation of the plan and conducting emergency preparedness drills.

8. Children who use wheelchairs, crutches, canes, or other mechanical devices for assistance in walking shall be provided with a planned, personalized means of effective egress for use in emergencies.

E. The school shall have emergency preparedness and response training for all employees, contractors, student interns, and volunteers that shall include responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures [ , ] including evacuation of students with special needs (i.e., deaf, blind, nonambulatory);

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency information for students including medical information; and

5. Utilizing community support services.

F. There shall be documented review of the emergency preparedness plan annually and revisions made if necessary.

G. Employees, contractors, student interns, and volunteers shall be prepared to implement the emergency preparedness plan in the event of an emergency.

H. Floor plans showing primary and secondary means of egress shall be posted on each floor in locations where they can easily be seen by staff and students.

I. The procedures and responsibilities reflected in the emergency procedures shall be communicated to all students within seven days following admission or a substantive change in the procedures.

J. At least one [ emergency ] evacuation drill [ (the simulation of the school's emergency procedures) ] shall be conducted [ each week during the first month of school and one each month thereafter ] in each building occupied by students [ at least once per week for the first 20 school days and then once a month for the rest of the school year and more often if necessary ].

K. Evacuation drills shall include, at a minimum:

1. Sounding of emergency alarms;

2. Practice in evacuating buildings and buses or vans;

3. Practice in alerting emergency authorities;

4. Simulated use of emergency equipment; and

5. Practice in securing student emergency information.

L. A record shall be maintained for each evacuation drill and shall include the following:

1. Buildings and buses or vans in which the drill was conducted;

2. Date and time of drill;

3. Amount of time to evacuate the buildings;

4. Specific problems encountered;

5. Staff tasks completed including head count and practice in notifying emergency authorities; and

6. The name of the staff members responsible for conducting and documenting the drill and preparing the record.

M. The record for each evacuation drill shall be retained for three years after the drill.

N. At least one staff member shall be assigned the responsibility for ensuring that all requirements regarding the emergency preparedness and response plan and the evacuation drill program are met.

O. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of students, the school shall notify the parent(s), the student's public school, placing agency, and [ licensing agency department ] as soon as possible, but no later than 24 hours after the incident occurs.

8VAC20-671-390. Weapons.

The licensee shall develop written policies and procedures governing prohibition of [ the possession and use of firearms, pellet guns, air guns, and other weapons on the school's premises and during school-related activities unless the weapons are in the possession of licensed security personnel or law-enforcement officers weapons on school property mandated in § 18.2-308.1 of the Code of Virginia. The staff and students shall be annually informed of the policies and procedures regarding the prohibition of weapons. ]

8VAC20-671-400. [ Strip searches Searches ].

[ A. Strip searches and body cavity searches are prohibited.

B. A. ] A school that does not conduct pat downs shall have a written policy prohibiting them.

[ C. B. ] A school that conducts pat downs shall develop and implement written policies and procedures that shall provide the following:

1. Pat downs shall be limited to instances where they are necessary to prohibit contraband;

2. Pat downs shall be conducted by personnel of the same gender as the student being searched;

3. Pat downs shall be conducted only by personnel who are specifically authorized to conduct searches by the school's written policies and procedures; and

4. Pat downs shall be conducted in such a way as to protect the subject's dignity and in the presence of one or more witnesses.

8VAC20-671-410. Student application and admission.

A. The school's written admission policy shall include:

1. A description of the population to be served;

2. A description of the types of services offered;

3. Admission procedures;

4. Exclusion criteria that identify behaviors or conditions the school will not accept; and

5. A description of how educational services will be delivered.

B. [ A summary of each The ] school's admissions policy, course offerings [ at each grade level ], and behavioral management program shall be made available to students, parents, and placing and licensing agencies.

C. Each school's admissions process shall be designed to determine the suitability of enrolling a student. The school shall accept and serve only those students whose needs are compatible with the services provided by the school.

D. [ The school shall provide written notification for a student's education records within five business days of the student's enrollment. Notification shall be made to the superintendent of the school division where the student last attended. The school shall request current information pertinent to the student's educational growth to include, but not limited to, the IEP, 504 Plan, or career development plan; plan of study; assessments; grades or transcript; discipline records; and health records Upon enrollment and at least annually, the school shall provide parents access to, or a copy of upon request, the school's policies and procedures, including those governing the management of student behavior, the school's curriculum, and the school's promotion and retention policies ].

E. [ When the student's education records are not provided during the application process, the school with written parental consent shall make a request within five business days of enrollment to the student's last attended school or the division superintendent or designee.

F. ] An application for admission is not to be construed as a binding instrument on the part of the student or the school.

[ F. G. ] A school may require the payment of a reasonable nonrefundable initial application fee to cover expenses in connection with processing a student's application provided [ it the school ] retains a signed statement in which the parties acknowledge their understanding that the fee is nonrefundable. No other nonrefundable fees shall be allowed prior to enrollment.

[ G. H. ] Any contract or enrollment agreement used by the school shall be in writing and clearly specify the following:

1. Complete name and physical address of the school;

2. Itemized cost of the program to include tuition, [ scholarships, and ] all other charges [ , and any scholarship amount applied to the cost of tuition ]; and

3. The school's contingency, cancellation, and refund policies.

[ H. I. ] Any contract or enrollment agreement used by the school becomes a legally binding instrument upon the school's written acceptance [ of the student ].

[ I. Each school that serves privately placed students shall offer access to a tuition insurance plan if the school financially obligates students for more than quarterly increments of annual tuition. ]

8VAC20-671-420. Standard school year and school day.

A. Each school shall have a standard school year of at least 180 [ instructional teaching ] days [ or a total of at least 990 teaching hours per year ]. The standard school day for students in grades 1 through 12 shall average at least [ 5-1/2 instructional five and one-half teaching ] hours [ (990 hours annual instructional time) or average 27 and one-half hours weekly ], excluding breaks for meals and recess, and a minimum of three [ instructional ] hours [ daily ] for kindergarten.

B. [ All students in grades 1 through 12 shall maintain a full day schedule of classes (5-1/2 hours) unless otherwise stated in the child's Individualized Education Program (IEP), Individualized Instruction Plan (IIP), 504 Plan, or other documentation. The private school shall initiate a team meeting to review the child's IEP, 504 Plan, or IIP when a student has a medical, mental, or physical condition that requires modification of the student's school schedule. ]

C. Each school shall have policies and procedures that address make-up days when the school is unable to meet the required instructional time.

8VAC20-671-430. [ School and community communications Community relationships ].

[ A. Each school shall promote communications and foster mutual understanding with parents and the community and use information from parents, citizens, business, and industry in evaluating the educational program.

B. At the beginning of each school year, the school shall provide to parents or guardians information on the availability of and source for receiving the curriculum for their child's core subjects and a copy of the school's promotion and retention policies and access to the school's policies and procedures.

Each school shall facilitate cooperative relationships with neighbors, the school system, local law enforcement, local government officials, and the community at large. ]

8VAC20-671-440. Philosophy, goals, and objectives.

A. Each school shall have a current philosophy, goals, and objectives that serve as the basis for all policies and practices and shall be developed using the following criteria:

1. The philosophy, goals, and objectives shall be developed with the advice of professional and lay people who represent the various populations served by the school and in consideration of the needs of the community and [ shall ] serve as a basis for an annual self-evaluation of the school.

2. [ The goals Goals ] and objectives shall [ (i) ] be written in plain language so as to be understandable to noneducators, including parents [ ; (ii) to the extent possible, be stated in measurable terms; and (iii) consist primarily of measurable objectives to raise student and school achievement in the core academic areas, to increase graduation rates, and to increase the quality of instruction through professional staff development and licensure ].

B. Copies of the school's philosophy, goals, and objectives shall be available upon request.

8VAC20-671-450. Student achievement expectations.

A. [ A process to identify and recommend Schools shall develop ] strategies to address the learning, behavior, [ and ] communication [ , or development of needs of ] individual students [ who are having difficulty in the educational setting shall be developed at each school in collaboration with the parent ].

B. Participation in the Virginia assessment program by students with disabilities shall be prescribed by provisions of their IEPs or 504 Plans. [ All students with disabilities shall be assessed with appropriate accommodations and alternate assessments when required. ]

C. Each school that serves students who anticipate earning a diploma and graduating from a [ public ] Virginia high school must follow the requirements for graduation outlined in the Regulations Establishing Standards for Accrediting Public Schools in Virginia (8VAC20-131).

D. The school shall cooperate with the public school in the administration of SOL tests [ to students with disabilities and students who need verified credits to graduate from a public high school in Virginia, and the administration of any other SOL tests ].

E. The school shall use testing and evaluation materials that are not racially or culturally discriminatory and do take into consideration the student's disabling condition(s), racial background, and cultural background.

[ 8VAC20-671-460. 8VAC20-671-490. ] Program of instruction and learning objectives.

A. Each school's instructional program shall reflect the written philosophy of the school. The methods, procedures, and practices shall reflect an understanding of and meet the applicable academic, vocational, therapeutic, recreational, and socialization needs of the students served.

B. The instructional program shall be designed to meet the needs of all students enrolled and shall educate students with age-appropriate peers [ unless it can be shown that for a particular child with a disability, the alternative placement is appropriate and documented on the student's IEP, IIP, or 504 Plan ].

C. Services shall be delivered in accordance with the student's IEP, IIP, or 504 Plan.

[ D. Children of preschool ages (two years to five years, inclusive) shall receive services determined by the child's IEP, IIP, or 504 Plan. ]

[ D. Each school serving students E. Students ] 14 years of age and older shall [ provide be provided ] opportunities [ for students ] to gain knowledge and occupational readiness skills necessary for successful transition to [ postsecondary education, ] training, employment, and independent living, as appropriate.

[ E. Each school shall provide opportunities for students to gain knowledge and occupational readiness skills necessary for successful transition to postsecondary training, education, employment and independent living skills, as appropriate. ]

F. Each school shall provide a program of instruction that [ supports the SOL clearly articulates learning outcomes ] for the core subjects: English, mathematics, science, and history/social science. [ Schools may use Virginia's Standards of Learning (SOL). ]

G. Each school shall require students to participate in a program of health and physical fitness during the regular school year unless the student is unable to participate due to a medical condition [ or has met the credit requirement for graduation ].

H. Each school shall provide students with opportunities to gain appreciation for art and music.

I. Each school shall provide an instructional program that promotes the individual student's developmental growth and academic achievement at successive grade levels, as appropriate.

[ J. The services provided by a private school shall be provided by personnel meeting the same licensure requirements as personnel providing services in the public school, outlined in Licensure Regulations for School Personnel (8VAC20-22).

K. J. ] The school shall equitably serve the needs and interests of all students, taking into consideration age appropriateness, cultural norms, physical abilities, and cognitive abilities.

[ K. Each school shall implement evidence-based practices to improve academic, behavior, and social outcomes for all students. ]

[ 8VAC20-671-470. 8VAC20-671-460. ] Individualized Education Program (IEP).

A. [ When a child is presently receiving the services of a private school, a A ] representative of the private school shall attend IEP meetings upon the request of the student's school division. If a representative is not able to attend, the school shall use other methods to ensure participation [ by the private school ] including individual or conference telephone calls.

B. [ After a child with a disability enters a private school, any Any ] meetings to review and revise the child's IEP may be initiated and conducted by the private school at the discretion of the student's school division.

C. If the private school initiates and conducts these meetings, the student's school division and the parent(s) shall:

1. Be involved in any decision affecting the child's IEP;

2. Agree to any proposed changes in the program before those changes are implemented; and

3. Be involved in any meetings that are held regarding reevaluation.

D. A [ parent(s) parent ] does not include local or state agencies or their agents, including local departments of social services, if the child is in the custody of such an agency.

E. When a child with a disability is placed by a local school division or [ a Comprehensive Services Act team family assessment and planning team ] in a private school, all rights and protections under state and federal regulations shall be extended to the child.

[ 8VAC20-671-480. 8VAC20-671-470. ] Individualized Instruction Program (IIP).

A. Students [ without disabilities not determined eligible for special education ] and those placed by parents [ for educational reasons ] shall have an Individualized Instruction Program (IIP) developed within 30 [ business ] days of [ admission enrollment ] that describes strengths and needs of the student, current level of functioning, goals and objectives, [ timelines, ] course of study, and postsecondary goals for students 14 years of age and older.

B. Each school shall request with [ written ] consent of the [ parent(s) parent ] the student's education records from the last school attended [ , ] and information from other agencies as appropriate. This information should be used in developing the student's IIP.

C. The IIP shall provide a beginning and ending date of services.

D. The IIP shall be reviewed at least annually by a team that includes the [ school administrator or teacher, other staff as appropriate, parent, and ] student [ and the parent as appropriate ].

E. Student progress reports shall be provided to the parent [ or guardian ] at least quarterly.

[ 8VAC20-671-490. 8VAC20-671-480. ] 504 Plans.

Each school admitting students with 504 Plans shall implement the plan and cooperate with the school division in its annual review. [ An individualized instruction plan (IIP) shall be developed for each student with a 504 plan. ]

8VAC20-671-500. Instructional program for elementary school grades.

[ A. The elementary school grades shall provide each student a program of instruction that supports the SOL for English, mathematics, science, and history/social science. In addition, each school shall provide opportunities for students to gain an appreciation for art and music. Students shall be required to participate in a program of health and physical fitness during the regular school year.

In addition to the applicable requirements under 8VAC20-671-490, the following shall apply: ]

[ B. 1. ] In kindergarten through grade 3, reading, writing, spelling, and mathematics shall be the focus of the instructional program.

[ C. 2. ] To provide students with sufficient opportunity to learn, a minimum of 75% of the annual instructional time of 990 hours shall be given to instruction in the disciplines of English, mathematics, science, and history/social science. Students who are not successfully progressing in early reading proficiency or who are unable to read with comprehension the materials used for instruction shall receive additional [ instructional time instruction ] in reading.

8VAC20-671-510. Instructional program for middle school grades.

[ A. The middle school grades shall provide each student a program of instruction that supports the SOL for English, mathematics, science, and history/social science. Each school shall provide opportunities for appreciation of art and music and an introduction to career and technical exploration and require students to participate in a program of health and physical fitness during the regular school year.

B. English, mathematics, science, and history/social science shall be required.

In addition to the applicable requirements under 8VAC20-671-490, the following shall apply: ]

[ C. 1. ] To provide students a sufficient opportunity to learn, each student shall be provided 140 clock hours per year of instruction in each of the four disciplines of English, mathematics, science, and history/social science.

[ D. 2. ] Each school shall ensure that students who are unable to read with comprehension the materials used for instruction receive additional instruction in reading.

[ 3. Each school shall provide students with opportunities for career and technical exploration. ]

8VAC20-671-520. Instructional program for secondary school grades.

[ A. The secondary school grades shall provide each student a program of instruction that supports the SOL in English, mathematics, science, and history/social science.

In addition to the applicable requirements under 8VAC20-671-490, the following shall apply: ]

[ B. 1. ] To provide students a sufficient opportunity to learn, each student shall be provided 140 clock hours per year of instruction in each of the four disciplines [ , English, mathematics, science, and history/social science ].

[ C. Students in secondary education programs who plan to graduate with a standard or advanced diploma from a Virginia public high school should have the opportunity to complete credits in foreign languages, fine arts, and career and technical training.

2. Each school shall provide a course of study that leads to graduation and postsecondary education, training, employment, and independent living, as appropriate.

3. Each school shall provide instruction in economics and personal finance and occupational readiness.

4. A curriculum that includes functional living skills training, including community-based instruction, shall be available for students as the need is determined by the IEP or IIP. ]

[ D. 5. ] Classroom driver education may count for 36 class periods of health education. Students shall not be removed from classes other than health and physical education for the in-car phase of driver education.

[ E. 6. ] Each school shall ensure that students who are unable to read with comprehension the materials used for instruction receive additional instruction in reading [ ,. ]

[ F. Guidance and counseling shall be provided for students to ensure that a program of studies contributing to the student's academic achievement and meeting graduation requirements is being followed.

7. Staff shall provide guidance and counseling to assist students in meeting graduation requirements. ]

8VAC20-671-530. Alternative education.

Schools may provide students, 16 years of age to 18 years of age [ who choose to prepare for the Tests of General Educational Development (GED) certificate ], an Individualized Student Alternative Education Plan (ISAEP) [ , a ] program [ that includes career guidance counseling; mandatory enrollment in a GED preparation program; and career and technical education ]. Implementation of the ISAEP [ program ] requires submission of an application and approval by the [ Department of Education department ].

8VAC20-671-540. Transition services.

A. Schools shall cooperate with the public schools to ensure that the transition plan for each student with a disability, beginning at 14 years of age (or younger), is implemented according to the child's IEP.

B. Schools shall provide evidence of transition services designed within an outcome-oriented process for all students, as appropriate, that promotes movement from the private school to a public school the child would normally attend; movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

8VAC20-671-550. Extracurricular and other school activities, and recess.

A. School-sponsored extracurricular activities shall be under [ the ] direct supervision of [ the ] staff and [ shall contribute to the educational objectives of the school. Extracurricular activities must be ] organized to avoid interrupting the instructional program.

B. [ School-sponsored extracurricular CPR and first aid certified staff shall accompany students on school-sponsored ] activities [ shall have at least one person certified in CPR for every 10 students ].

C. Schools that take students on [ outdoor ] adventure activities [ and offer programs such as canoeing, skiing, camping, and rock climbing ] shall develop policies and procedures to ensure supervision, health and safety, and medical management.

8VAC20-671-560. Family life.

A. Schools may use the Standards of Learning for the family life education program or other education program, [ which shall have the goals that is designed to promote parental involvement, foster positive self concepts, and provide mechanisms for coping with peer pressure and the stresses of modern living according to the student's developmental stage and has the goal ] of reducing the incidence of pregnancy and sexually transmitted diseases and substance abuse.

B. Schools offering family life shall obtain written consent from the parent [ or guardian ] for the child's [ enrollment in the course participation ].

8VAC20-671-570. Student work-study or on-the-job training.

A. Each school that places students on work-study, on-the-job training, or any other form of employment shall ensure compliance with the applicable laws governing the employment of children.

[ B. Work assignments that are paid or unpaid shall be in accordance with the age, health, ability, and education program of the student. ]

[ C. B. ] Work assignments or employment [ outside the school ], including [ reasonable ] rates of pay, shall be approved by the school administrator with the [ knowledge and ] consent of the parent [ or legal guardian ].

8VAC20-671-580. Virtual learning.

A. [ Schools are encouraged to pursue alternative means to deliver instruction to accommodate student needs through virtual learning. A school shall ensure that each virtual education course is provided by an institution accredited by a nationally recognized accrediting body or is authorized by a public school or school division. Virtual courses may only be offered through accredited providers as outlined in §§ 22.1-212.23 and 22.1-253.13:3 of the Code of Virginia. ]

B. [ A school shall ensure that virtual learning courses meet the following requirements:

1. The content, instruction, and assessment of each course is comparable in rigor and breadth to the course that is traditionally delivered;

2. The course content is appropriate for the school's grade levels and age range; and

3. The virtual learning shall be supervised by a licensed teacher or a person eligible to hold a Virginia teaching license. The individual shall be available to the student.

The virtual learning shall be proctored by a licensed teacher or appropriately trained paraprofessional who is supervised by a licensed teacher. The teacher or paraprofessional shall be available to the student. ]

8VAC20-671-590. Equipment, instructional materials, and library media.

A. Each school shall provide [ a variety of current grade-level instructional ] materials and equipment [ necessary ] to support the instructional program, including [ functional life skills programs the goals and objectives established for individual students ].

B. [ Each school shall provide access to computers and library media necessary to meet research inquiry and reading requirements of the instructional program and general student interest. Students shall receive instruction on the use of classroom equipment as appropriate and demonstrate applicable safety competencies before being allowed to use such equipment. ]

[ C. Each student, as appropriate, shall be provided instruction on the use of instructional equipment and shall demonstrate understanding before access to laboratories.

D. Each school shall provide textbooks and instructional materials that support Virginia's Standards of Learning.

E. C. ] Each school shall establish written policy on the use of computers, including the use of the Internet and email.

8VAC20-671-600. School records.

Each school shall maintain up-to-date records to include [ a listing of all enrolled students with directory information, ] the school's academic calendar, class roster, class schedule, course descriptions, course curriculum, individual student schedules, student progress reports, and [ student transcript or other ] documentation of [ each student's ] grades [ and credits earned ].

8VAC20-671-610. Diplomas.

A. No school shall use the seal of Virginia in its diploma design.

B. Each school that offers a diploma upon graduation shall have written [ policy policies ] and procedures that address the following:

1. The requirements for a diploma shall be those in effect when the student enters the ninth grade for the first time.

2. The requirements for a diploma shall be based upon completion of program requirements that demonstrate academic rigor.

8VAC20-671-620. Student conduct.

[ A. Each school shall provide a schoolwide environment that reinforces appropriate behaviors and assists students in becoming actively engaged in their own learning, academic, and behavioral success. ]

[ A. B. ] Each school shall have written policies and procedures that address standards of student conduct and procedures for enforcement to include attendance, truancy, suspension, expulsion, alcohol, drugs, weapons, fighting, bullying, sexual and disability harassment, pornography, and other areas as appropriate.

[ B. When a student is suspended, including in-school suspension, or expelled, the school shall notify the student's home school division within 24 hours. C. The parent shall be notified on the date on which the decision is made to suspend or expel a student because of a violation of a code of student conduct. When a publicly placed student is suspended or expelled, the student's home school division shall be notified within 24 hours. ]

8VAC20-671-630. Behavior intervention.

A. Each school shall develop and implement written policies and procedures that emphasize positive behavior interventions [ that focus on teaching and supporting students to practice methods to manage their own behavior ].

B. Behavior techniques that are used or available for use shall be listed in the order of their relative degree of restrictiveness and specify the staff members who may authorize the use of each technique.

C. Staff shall consider behavior management data in their annual review of the school's policies and procedures.

D. When substantive revisions are made to policies and procedures governing management of student behavior, written information concerning the revisions shall be provided to students, parents, placing agencies, and the [ licensing agency department ] prior to implementation.

[ E. The parent shall be provided access to the school's behavior management policy and procedures upon enrollment and at the beginning of each school year, and provided a written copy upon request. ]

8VAC20-671-640. Time-out.

[ A. The school shall have written policy and procedures governing the conditions under which a student may use time-out and the maximum period of time-out not to exceed 30 minutes per episode. The conditions and maximum period of time-out shall be based on the student's chronological and developmental level. The school's policy and procedures shall include provisions that address the following: Policies and procedures shall be written that govern the conditions under which a student may self-select or be placed in time-out and the maximum length of time a student may be in time-out. The conditions for time-out and length of time a student may be in time-out shall be based on the student's chronological and developmental levels. The school's policy and procedures shall include: ]

1. Each student is entitled to be completely free from any unnecessary use of time-out.

2. [ The areas in which a student is placed A door to a time-out room ] shall not be locked nor [ the door ] secured in a manner that prevents the student from opening it.

3. A student in time-out shall be able to communicate with staff.

4. Staff shall check on the student [ in the time-out area ] at least every 15 minutes and more often depending on the nature of the student's disability, condition, [ and or ] behavior.

5. [ Procedures shall be implemented for documenting the The ] use of time-out and staff checks on the student [ shall be documented ].

6. Staff shall review procedures when a student consistently chooses to stay in time-out beyond the determined time limit to determine that it has not become reinforcement.

8VAC20-671-650. Prohibitions.

[ A. ] The following actions are prohibited:

1. Restraint and seclusion, except when it is necessary to protect the student or others from personal harm, injury, or death and other less restrictive interventions were unsuccessful;

2. Prone "face down" restraints, mechanical restraints, [ and ] pharmacological restraints [ , and any other restraint that restricts breathing or harms the child or interferes with the child's ability to communicate ];

3. Deprivation of drinking water or food;

4. Limitation on contacts and visits [ with from ] the student's probation officer, [ regulators, or social worker, ] placing agency representative [ , or other service provider as appropriate ];

5. Any action that is humiliating, degrading, or abusive;

6. Corporal punishment;

7. Deprivation of approved prescription medication or other necessary services [ and treatment ];

8. Denial of access to toilet facilities;

9. Application of aversive stimuli;

10. Strip and body cavity searches; and

11. Discipline, restraint, or implementation of behavior management plans by other students.

8VAC20-671-660. Managing student behavior in emergency situations.

[ A. Application of a formal behavior management program designed to reduce or eliminate severely maladaptive, violent, or self-injurious behavior contingent upon the exhibition of such behaviors is allowed only as part of an individually approved time specific plan that is consistent with sound therapeutic practice. Written consent of the student, parent or guardian, and the student's school division is required.

B. A. ] Each school shall have written policies and procedures [ made available annually to students, parents, and placing agencies ] that include, but are not limited to:

1. Methods for preventing student violence, self-injurious behavior, and suicide, including de-escalation of potentially dangerous behavior occurring among groups of students or with an individual student.

2. A [ policy stating statement ] that corporal punishment and abusive techniques and interventions are not authorized, permitted, or condoned.

[ C. Each school shall develop and implement 3. A statement that ] behavior management techniques [ are applied ] in order of their [ relative ] degree of intrusiveness or restrictiveness and the conditions under which they may be used by trained [ school ] personnel.

[ D. While the use of restraint and seclusion is prohibited, a school that finds it absolutely necessary can only do so under the following conditions:

1. B. ] Physical restraint or seclusion is allowed only in an emergency situation [ for a time period that and only when it ] is necessary to [ contain the behavior of the student so that the student no longer presents an immediate threat of causing physical injury to self or others or causing severe property damage protect the student or another person from imminent danger of serious physical harm after less intrusive interventions have been attempted and failed to manage that particular behavior and there is a substantial explanation for why other interventions were deemed inadequate or inappropriate ].

[ 1. The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, shall trigger a review and, if appropriate, a revision of behavioral strategies currently in place to address dangerous behavior. If positive behavioral strategies are not in place, staff shall develop them.

2. In cases where a student has a history of dangerous behavior for which restraint or seclusion was considered or used, a school shall have a plan developed in consultation with the parent for (i) teaching and supporting more appropriate behavior and (ii) determining positive methods to prevent behavioral escalations that have previously resulted in the use of restraint or seclusion. ]

[ 2. 3. ] Physical restraint or seclusion shall not be used [ for disciplinary reasons, ] as a punishment [ , or ] retaliation, or for staff's convenience.

[ 3. The school shall have written policies and procedures governing use of physical restraint and seclusion incidents that shall include the following:

a. 4. ] Each student is entitled to be completely free from any unnecessary use of physical restraint or seclusion. [ Physical restraint and seclusion are allowed only in an emergency situation for a time period that is necessary to contain the behavior of the student so that the student no longer presents an immediate threat of causing physical injury to self or others or causing severe property damage.

b. The school shall provide written notice of its behavior management program to students, parent(s), and placing agency at the time of the student's enrollment.

c. 5. ] Staff shall [ continuously ] monitor the use of [ physical ] restraint and seclusion [ through continuous face-to-face observation, not solely by and shall not rely on ] an electronic surveillance device.

[ d. Restraints 6. Physical restraint ] may only be implemented, monitored, [ and or ] discontinued by staff who have [ been trained in the proper and safe use of restraint, including hands-on techniques received proper training ].

[ e. Students must be supervised by staff members trained in behavior intervention.

f. Schools shall inform the parent and placing agency of each incident of physical restraint or seclusion on the day of the occurrence and make available to the licensing agency upon request.

7. The door to any room in which a student is secluded may be held shut only when a staff member is personally securing it. The door must immediately disengage when the staff member steps away from it. The room must meet specification including size and viewing panels that ensure the student's safety at all times including during a fire or other emergency.

8. Schools shall permit parents to inspect any area used during an emergency for the purpose of seclusion.

9. The parent shall be informed on the day of each incident of physical restraint or seclusion. The student's home school division and placing agency shall be informed as soon as possible but within 24 hours of the occurrence. ]

[ g. 10. ] Each application of physical restraint or seclusion shall be fully documented in the student's record including date, time, staff involved, justification for the [ physical ] restraint or seclusion, [ behavior antecedents, ] less restrictive interventions that were unsuccessfully attempted prior to using physical restraint or seclusion, duration, description of method or methods of physical restraint techniques used, signature of the person completing the report and date, and reviewer's signature and date. [ The written report shall be made available to the parent within two business days of the occurrence and opportunity given for the parent and student, as appropriate, to discuss the matter with school staff.

11. Schools shall collect and annually report to the department the number of times restraint and seclusion were used during the school year. The data shall be disaggregated by students and number of occurrences. ]

8VAC20-671-670. Videotaping.

A. Schools shall have written policy and procedures regarding videotaping students while in school and any school-sponsored activity, including those used for staff training.

B. No student shall be videotaped without written consent of the parent and eligible student.

C. Any videotaping of students shall be maintained confidentially unless there is explicit written permission to release or disclose from the [ parent(s) parent ] and eligible student.

D. Buildings and grounds surveillance is not considered videotaping for the purpose of this chapter.

8VAC20-671-680. Referral for evaluation.

[ A. ] When a student [ , including those placed by their parent(s) or from out-of-state, ] is suspected of having a disability, the [ private ] school [ shall may ] make a referral to the division superintendent of the school division where the private school is located. Documentation of the referral notice shall be maintained in the student's record.

[ B. The school shall cooperate with the school division on child find activities. ]

8VAC20-671-690. Suspected child abuse and neglect.

A. Written policies and procedures related to child abuse and neglect shall comply with the requirements of § 63.2-1509 of the Code of Virginia and distributed to all staff members. Policies and procedures shall include:

1. Handling accusations against staff; and

2. [ Promptly referring suspected cases Reporting immediately, but under no circumstance later than 24 hours after having a suspicion of a reportable offense ] of child abuse and neglect to the [ local ] child protective services unit [ of the local department of social services of the county or city wherein the abuse or neglect was believed to have occurred or to the Department of Social Services toll-free child abuse and neglect hotline and for cooperating with the unit during any investigation ].

B. Any case of suspected child abuse or neglect occurring at the school or on a school-sponsored event or excursion shall be reported immediately to the student's parent [ , guardian, or both if appropriate, ] and the [ placing and licensing agencies department ]. For publically placed students, the home school division and the placing agency shall also be notified.

C. [ When a case of suspected Suspected ] child abuse or neglect [ is reported to child protective services, the school shall document: shall be immediately documented to include ] the following:

1. The date and time the suspected abuse or neglect occurred;

2. A description of the suspected abuse or neglect;

3. Action taken as a result of the suspected abuse or neglect;

4. The name of the person who made the report to child protective services; and

5. The name of the person to whom the report was made at the local child protective services unit.

[ D. Suspected child abuse shall be handled and reported as a serious incident. ]

8VAC20-671-700. Serious incident reports.

A. Any serious incident, accident, or injury to a student [ or medication error ] that occurs at the school or a school-sponsored activity shall be reported [ to the parent ] immediately, [ but ] no later than the end of the school day [ , to the parent, student's public school, placing agency, and licensing agency. A publically placed student's home school division and the placing agency shall be notified as soon as possible, but not later than 24 hours of the occurrence. ]

B. The school shall document the following:

1. The date and time the incident occurred;

2. A brief description of the incident;

3. The action taken as a result of the incident;

4. The name of the person who completed the incident report; and

5. The date and name of the person who made the report to the proper authorities.

C. The [ licensing agency department ] shall review [ all ] reports of serious incidents and investigate as appropriate [ using the complaint resolution procedures of this chapter ].

8VAC20-671-710. Medication and health.

A. Each student shall have on file evidence of a comprehensive physical examination prescribed by the State Health Commissioner from a qualified licensed (i) physician, (ii) nurse practitioner, or (iii) physician assistant acting under the supervision of a licensed physician. The examination must contain, at a minimum, information required on the Commonwealth of Virginia School Entrance Health Form.

B. Each student shall have an up-to-date certificate of immunization [ documenting the immunizations required by the Code of Virginia and State Board of Health’s Regulations for the Immunization of School Children (12VAC5-110) ].

C. Any student or staff with a [ disease or ] medical condition that is contagious or infectious shall [ be excluded take leave ] from school while in that condition unless attendance is approved by a qualified [ healthcare health care ] provider. Conditions meeting this requirement must be provided in the parent/student handbook or other print materials.

D. A first aid kit shall be maintained and readily accessible for minor injuries and medical emergencies in each building used for instruction or other school activity.

E. All medications shall be accepted only in the original container with written permission signed and dated by the parent to administer to [ his the ] child. The use of all prescriptive medication must be authorized in writing by a licensed prescriber.

F. All medication and medical paraphernalia shall be [ securely locked and properly labeled properly labeled and securely locked or stored in accordance with the Virginia School Health Guidelines ].

[ G. A program of medication administration shall be initiated for a student only when prescribed in writing by a person authorized by law to prescribe medication and written consent from the parent is obtained to administer.

H. G. ] An individual medication administration record shall be maintained for each medication a student receives and shall include student name, date the medication is to begin, drug name, schedule for administration, strength, route, identification of the individual who administered the medication, and dates the medication was discontinued or changed.

[ I. H. ] The provider shall develop and implement written policies and procedures regarding:

1. Managing medication errors to include the following: administering first aid; contacting the poison control center; notifying the prescribing physician; taking action as directed; documenting the incident; reviewing medication errors and staff responses; and reporting errors to the parent and placing agency.

2. Handling adverse drug reactions;

3. Revising procedures as events may warrant;

4. Disposing of medication and medical supplies such as needles, syringes, lancets, etc.;

5. Storing of controlled substances;

6. Distributing medication off campus; and

7. [ Medication refusal to include who is responsible for documentation, where it will be documented and action taken by staff Documenting medication refusal ].

[ J. I. ] The telephone number of a regional poison control center and other emergency numbers shall be posted on or near the phone.

[ K. J.]. Medication training.

1. All staff responsible for medication administration shall have successfully completed [ a ] medication training [ , including refresher training, in a ] program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medication before they can administer medication.

2. Training shall be provided to [ all ] staff in medication procedures and effects and infection control measures, including the use of standard precautions.

3. [ There shall be a ratio of one staff member to 10 students Staff ] certified in first aid and CPR [ and shall be ] available at all times on the school grounds and during any school-sponsored activity.

4. Documentation of medication training must be maintained in personnel files.

5. Staff authorized to administer medication shall be informed of any known side effects of the medication and the symptoms of the effects.

[ L. K. ] Monitoring the supply of medications.

1. Upon receiving any medication, staff members handling medication shall count individual tablets and measure the level of liquid medicine in the presence of the parent(s) or another staff member and record the count on the medication log.

2. The medication log shall include the signature or initials of the staff member who counted the medication and the parent or staff who witnessed the occurrence. When initials are used, the medication administration record must contain the full name of the staff with corresponding initials for identification purposes.

3. Students shall be prohibited from transporting medication [ unless directed otherwise by the student's health care plan ].

8VAC20-671-720. School nutrition.

A. Schools with [ internal ] food service shall [ serve to each student on a daily basis a daily ensure a ] diet that (i) consists of nutritionally balanced meals, (ii) includes an adequate variety and quantity of food for the age of students, and (iii) meets [ the ] minimum requirements [ and of ] the [ U.S. ] Dietary Guidelines [ for Americans, 2010, U.S. Department of Agriculture and U.S. Department of Health and Human Services, 7th Edition, December 2010 ].

[ B. Schools with internal food service shall ensure that all 1. All ] food safety and sanitation procedures [ are shall be ] followed in accordance with state and federal regulations.

[ C. 2. ] Records of menus for all meals served shall be kept on file for six months.

[ D. Special diets shall be provided 3. Provisions shall be made for special diets ] when prescribed by a physician or requested by the student or parent because of the student's established religion.

[ E. B. ] In schools where students are required to bring their own lunch, provisions shall be made to ensure a meal for all students.

8VAC20-671-730. Transportation.

A. [ Each school shall have on file evidence that any vehicles used for the purpose of transporting students to and from school and school-related activities meet federal and state regulations, including: Transportation provided for or used by students shall comply with local, state, and federal laws relating to: ]

1. Vehicle safety and maintenance;

2. Licensure of vehicles;

3. Licensure of drivers;

4. [ Vehicle liability insurance Child passenger safety, including requiring children to wear appropriate seat belts or restraints for the vehicle in which they are being transported ];

5. [ Child passenger safety, including requiring students to wear seat belts or restraints Vehicle liability insurance ]; and

6. Safety measures that take into consideration the age and disabling conditions of students.

B. All vehicles used to transport students to school activities shall be equipped with first aid kits, a fire extinguisher, and two-way communication devices.

C. Individual student emergency information including currently prescribed and over-the-counter medications, significant medical problems, and any allergies shall accompany students when they are being transported.

8VAC20-671-740. [ Treatment services (Reserved.) ]

[ Licensed providers of treatment services shall coordinate those services to allow students to receive the required hours of instruction to the extent possible. When treatment services are not prescribed by a licensed mental health professional, the student shall receive the required number of hours of instruction. ]

8VAC20-671-750. Student discharge.

A. Each school shall have policies and procedures that address conditions for which a student may be discharged from the school.

B. The school's criteria for discharge shall be made available to prospective students, parents, and placing agencies before their enrollment.

C. The student's education record shall be documented with the date of discharge and reason for discharge.

D. Students shall be discharged only to the parent or legally authorized representative.

8VAC20-671-760. Maintenance of student records.

A. The school shall have written policy and procedures for the management of all records, print and nonprint, regarding confidentiality, accessibility, security, [ and ] retention [ , and disposition ].

B. Student education records shall be maintained in [ fireproof fire resistant ] cabinets [ and protected from unauthorized disclosure ].

C. Each student's education record shall contain information pertinent to the educational growth and development to include a completed enrollment sheet; a current IEP, 504 Plan, or IIP; student transcript; course of studies; and progress reports. Other information should include disciplinary records, health records, and achievement and test data.

D. [ A school shall obtain written Written ] consent from the child's parent [ shall be obtained ] before disclosure of information from a student's education record to unauthorized parties. Authorized parties shall be limited to school employees, including contracted employees, and representatives of [ placing school divisions, accrediting agencies, and ] state licensing agencies who need access to the student's records to carry out their work responsibilities.

E. [ A school may disclose information Information may be disclosed ] in an emergency to any person who needs that particular information for the purpose of preventing injury to a student or staff. The school shall not disclose any information that is not needed for this specific purpose. [ The school may disclose any records if they are properly subpoenaed, if a court orders them to be produced, to the school's own legal counsel, or to anyone working on behalf of their legal counsel in providing representation to the school. ]

F. The school shall permit a parent [ or parents ] to inspect and review any education records relating to [ their the ] child that are collected, maintained, or used by the school. The school shall comply with a request without unnecessary delay and before any meeting regarding an IEP or 504 Plan [ or in no case more than 14 calendar days after the request has been made ]. The right to inspect and review education records under this section includes:

1. The right to a response from the school to reasonable requests for explanations and interpretations of the records;

2. The right to request that the school provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records;

3. The right to have a representative of the parent inspect and review the records; and

4. A school may presume that a parent has authority to inspect and review records relating to his child unless the school has been advised that the parent does not have the authority under applicable Virginia law governing such matters as guardianship, separation, and divorce.

G. Each school shall keep a record of parties, except parents and authorized employees of the school, obtaining access to education records collected or maintained, including the name of the party, the date of access, and the purpose of the access.

H. If any education record includes information on more than one child, the [ parent(s) of those children have parent has ] the right to inspect and review only the information relating to [ their his ] child or to be informed of the specific information requested.

I. Schools may charge a fee for copies of records that are made for a [ parent(s) parent ] under this chapter if the fee does not effectively prevent the [ parent(s) parent ] from exercising [ their his ] right to inspect and review those records. A school may not charge a fee to search for or to retrieve information under this section.

J. A [ parent(s) parent ] who believes that information in the education records collected, maintained, or used under this chapter is inaccurate or misleading or violates the privacy or other rights of the child may request the school that maintains the information to amend the information.

1. The school shall decide whether to amend the information in accordance with the request within a reasonable period of time [ of receipt of the request ].

2. If the school decides to refuse to amend the information in accordance with the request, it shall inform the [ parent(s) parent ] of the refusal and inform the parent of the right to place in the child's education records a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the school.

3. Any explanation placed in the records of the child under this section must:

a. Be maintained by the school as part of the records of the child as long as the record or contested portion is maintained by the school; and

b. If the records of the child or the contested portion is disclosed by the school to any party, the explanation must also be disclosed to the party.

K. [ Records retention.

1. Each school shall maintain all education records, including discipline and medical records for as long as the student continues enrollment at the school.

2. When a student transfers to another school, the student's complete education record shall be transferred within five business days from the date of request and notification of the transfer to the parent, guardian, and placing agency.

3. When a student graduates or leaves school, the school shall offer all records to the eligible student or parent(s). The records of a publicly placed student who graduates or leaves school shall be transferred to the child's public school.

When a privately placed student graduates or leaves school, the student's education record shall be offered to the eligible student or parent. The records of a publically placed student who graduates or leaves school shall be transferred to the child's home school.

L. Each school shall maintain a permanent record of attendance to include the following: ]

[ a. 1. ] Name and address of school;

[ b. 2. ] Name, address, and birth date of student;

[ 3. Name and address of the home school division for publically placed students; ]

[ c. 4. ] Name and address of [ the ] parent [ or parents ];

[ d. 5. ] Student ID [ number ];

[ e. 6. ] Dates of attendance; [ and ]

[ f. Verification of immunizations

g. Scholastic work completed; and

h. Academic transcript.

7. Academic transcript ].

8VAC20-671-770. Participation of students in human research.

A. No human research involving students shall be conducted or authorized by any school unless in compliance with [ the Board of Education's regulation, 8VAC20-565, or other applicable law, including §§ 32.1-162.16 through 32.1-162.20 of the Code of Virginia and ] 45 CFR Part 46.

B. No such research shall be conducted or authorized unless the student and the student's legally authorized representative give their informed consent. Such informed consent shall be by a signed and witnessed informed consent form. Such form shall comply with § [ 32.1-162 32.1-162.18 ] of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or designee at least annually a report on the student projects reviewed and approved by the committee, which shall state significant deviations from the proposals as approved.

D. There shall be excluded from the operation of this chapter those categories of research in § 32.1-162.17 of the Code of Virginia that exempt research or student learning outcomes as conducted in educational settings involving regular or special education instructional strategies; the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods; or the use of educational tests, whether cognitive, diagnostic, aptitude, or achievement, if the data from such tests are recorded in a manner so that subjects cannot be identified, directly or through identifiers linked to the subjects.

8VAC20-671-780. Procedures for [ permanent ] school closing.

A. A school that ceases operation shall provide written notice as early as possible to all enrolled students, the parent(s), the student's public school, and licensing agencies.

B. All advertisements of the school's operation shall cease immediately, and the current license to operate shall be returned promptly to the [ licensing agency department ].

C. If privately placed students are unable to complete the academic year due to the school's closing, the school's guaranty instrument shall be used for tuition reimbursement to the fullest extent allowable.

D. All education records of privately placed students shall be provided to the parent or student who has reached 18 years of age and acknowledgement of such to the [ licensing agency department ].

E. All education records of publicly placed students shall be returned to the school division of the parent's residence and acknowledgement of such to the parent or student who has reached 18 years of age, and the [ licensing agency department ].

[ FORMS (8VAC20-671)

2015 -2016 Application to Operate a Private School for Students with Disabilities (rev. 7/15)

School Entrance Health Form, MCH 213G (rev. 3/14) ]

[ DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-671)

Virginia School Health Guidelines - General Guidelines for Administering Medication in School (pages 253-256), May 1999, published by the Virginia Department of Health and printed by the Virginia Department of Education

Dietary Guidelines for Americans 2010, 7th Edition, December 2010, U.S. Department of Agriculture and U.S. Department of Health and Human Services, Washington, D.C.: U.S. Government Printing Office, www.dietary guidelines.gov ]

Titles of Regulations: 8VAC20-670. Regulations Governing the Operation of Private Day Schools for Students with Disabilities (repealing 8VAC20-670-10 through 8VAC20-670-440).

8VAC20-671. Regulations Governing the Operation of Private Schools for Students with Disabilities (adding 8VAC20-671-10 through 8VAC20-671-780).

Statutory Authority: §§ 22.1-16 and 22.1-321 of the Code of Virginia.

Effective Date: August 26, 2015.

Agency Contact: John Eisenberg, Assistant Superintendent for Special Education and Student Services, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 786-8079 or email john.eisenberg@doe.virginia.gov.

Summary:

In response to Chapter 873 of the 2008 Acts of Assembly, the regulatory action repeals the Regulations Governing the Operation of Private Day Schools for Students with Disabilities (8VAC20-670) and creates a new chapter, Regulations Governing the Operation of Private Schools for Students with Disabilities (8VAC20-671), to address all applicable requirements for both private day schools and education programs in residential facilities, including group homes. The new chapter clarifies provisions for obtaining a license to operate, the management and conduct of schools, and the standards for programs offered by schools. Requirements of the new chapter include (i) programs of instruction that promote individual student academic achievement in the essential academic disciplines, (ii) development of policies and procedures by schools to ensure safe learning environments for and the protection of children in their care, and (iii) a change in the amount of the required guaranty instrument.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 671
REGULATIONS GOVERNING THE OPERATION OF PRIVATE SCHOOLS FOR STUDENTS WITH DISABILITIES

8VAC20-671-10. Definitions.

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 [ licensing agency 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. [ (34 CFR 300.8(c) (1)) ]

[ "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 [ (i) ] interfere with the learning of students with disabilities or with the learning of others or (ii) [ behaviors that ] require disciplinary action.

[ "Behavioral support" means those principles and methods employed by a school to help a student achieve positive behavior and to address and correct a student's behavior in a constructive and safe manner in accordance with written policies and procedures governing program expectations, educational and treatment goals, safety and security, and the student's Individualized Education Program (IEP) or Individual Instruction Plan (IIP). ]

"Board" means the State Board of Education [ , which has general supervision of the public school system ].

"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(s) 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(s) 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(s) or eligible student understands that the granting of consent is voluntary on the part of the parent(s) 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 [ their its ] agreement.

"Controlled substance" means a drug or other substance identified under Schedules I, II, III, IV, or V [ in § 202(c) ] of the Controlled Substances Act, 21 USC § 812(c). [ (34 CFR 300.530 (i)(1)) ]

"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(s) 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. [ (34 CFR 300.8(c)(3)) ]

"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. [ (34 CFR 300.8(c)(3)) ]

"Department" means the Virginia Department of Education.

"Developmental delay" means a disability affecting a child age two by September 30 through six, inclusive: [ (34 CFR 300.8(b) and 34 CFR 300.306(b)) ]

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). [ § 22.1-213 of the Code of Virginia; 34 CFR 300.8(a)(1) and 34 CFR 300.8(a)(2)(i) and (ii)). ]

"Education records," [ also known as scholastic records, ] mean 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 parent(s) 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: [ (34 CFR 300.8(c)(4)) ]

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 [ by the Regulations Governing Special Education Programs for Children with Disabilities in Virginia 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). [ (34 CFR 300.8(c)(5)) ]

"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 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. [ (34 CFR 300.22) ]

"Individualized Instruction Plan" or "IIP" means a written statement [ (plan) ] 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. [ (34 CFR 300.8(c)(6)) ]

"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 state ] Superintendent of Public Instruction that [ verifies authorizes ] approval to operate a school for students with disabilities [ and that indicates the status of the school regarding compliance with applicable regulations ].

[ "Licensing agency" means the Virginia Department of Education.

"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. [ (34 CFR 300.8(c)(7) ]

"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). [ (34 CFR 300.8(c)(8)) ]

"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. [ (34 CFR 300.8(c)(9) ]

"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 [ (§ 22.1-213.1 of the Code of Virginia) ]:

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 [ 2 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 [ 8VAC20-81-80 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 or persons 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 or persons 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. [ (Board of Education's Guidelines for the Development of Policies and Procedures for Managing Student Behaviors in Emergency Situations)

"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 [ his parent(s) the parent ].

"Publicly placed student" means a student placed in a private school for students with disabilities by a local school division [ or, family assessment and planning team under the ] [ Comprehensive Children's ] Services Act [ team, ] or [ by ] court order.

"Qualified personnel" or "qualified staff" means personnel who have met [ Virginia Department of Education approved or recognized the state-approved or state-recognized ] certification, licensing, [ registration, or other comparable requirements that apply to the area in which the individual is providing special education or related services. In addition, the professional must meet other state agency requirements for such professional service and Virginia licensure requirements as designated by Virginia law or regulations 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 [ includes 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 [ ) ]. [ (§ 22.2-213 of the Code of Virginia; 34 CFR 300.34(a) and (b)) ]

"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 [ , ]" [ "school," ] 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 severe disability, ] a specific learning disability, a speech or language impairment, a traumatic brain injury, or a visual impairment including blindness. [ (§ 22.1-319 of the Code of Virginia) ]

"Seclusion" means the confinement of a student alone in a room from which the student is physically prevented from leaving. [ ( Board of Education's Guidelines for the Development of Policies and Procedures for Managing Student Behaviors in Emergency Situations)

"Section 504" means that section of the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended, which is designed to eliminate discrimination on the basis of disability in any program or activity receiving federal financial assistance. ]

"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. [ There is no cost to the parent(s) for special education for a child who is placed in a school for students with disabilities by a school division, the Department of Social Services, or court order. (§ 22.1-213 of the Code of Virginia; 34 CFR 300.39) ]

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: [ (34 CFR 300.39(b)(3)) ]

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. [ (§ 22.1-213 of the Code of Virginia; 34 CFR 300.8(c)(10)) ]

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 and/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. [ (34 CFR 300.8(c)(11)) ]

"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 [ cautions 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 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 [ State 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. [ (Board of Education's Guidelines for the Development of Policies and Procedures for Managing Student Behaviors in Emergency Situations) ]

"Traumatic brain injury" means an acquired injury to the brain caused by an external physical force, 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 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. [ (34 CFR 300.8(c)(12)) ]

"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. [ (34 CFR 300.8(c)(13)) ]

"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.

8VAC20-671-20. Exemptions.

This chapter shall not apply to any of the following [ at § 22.1-320 of the Code of Virginia ]:

1. Any school that is licensed or approved pursuant to other statutes of the Commonwealth;

2. Any public or private high school accredited or recognized by the Board of Education that has offered or may offer programs for students with disabilities covered in this chapter [ , ] if any tuition, fees, and charges made by the school are collected in accordance with the regulations prescribed by the governing body of such school;

3. Tutorial instruction given in a private home or elsewhere as supplemental to regular classes for students enrolled in any public or private school or in preparation of an individual for an examination for professional practice or higher education;

4. A program through which persons with disabilities are provided employment and training primarily in simple skills in a sheltered or protective environment; [ or ]

5. Any privately owned or operated preschool, or elementary, middle, or secondary school that operates primarily to provide educational services to students without disabilities, although the school may serve children with disabilities in a regular academic setting [ ; or

6. Any private school for students with disabilities that operates in or on the premises of an elementary, middle, or secondary public school in a regular school setting during a typical school day ].

8VAC20-671-30. Licenses generally.

A. The Board of Education has established general requirements for a license to operate a private school for students with disabilities and has authorized the Superintendent of Public Instruction to issue licenses. The following applies in accordance with § 22.1-323 of the Code of Virginia:

1. No person shall open, operate, or conduct any school for students with disabilities in this Commonwealth without a license to operate.

2. A license to operate shall be restricted to the disability categories specifically indicated on the license, which may include one or more of the disability categories in the definition of a school for students with disabilities in this chapter.

3. A license to operate may be issued for a period of up to three successive years.

4. The term of a school's license may be reduced at any time during the licensure period based on a change in the school's compliance with these requirements.

5. A license to operate shall be prominently displayed on the premises of the school in a place open for inspection by any interested person during the hours of operation.

6. A license to operate shall be restricted to the approved conditions as printed on the license. Such conditions include, but are not limited to, the maximum number of students that can be enrolled, the disability category or categories of students that can be served, [ and the ] age range and gender [ , and grade levels ].

B. An individual seeking to operate a school for students with disabilities shall file an application with the [ licensing agency department ].

[ C. The department may make exception to the requirements of this chapter for good cause. ]

8VAC20-671-40. Advertising.

The following provisions consistent with [ § 22.1-323 § 22.1-325 ] of the Code of Virginia regarding advertisement of a school shall apply:

1. No school may use the seal of the Commonwealth in any advertisement, publication, or document, including diplomas, certificates, and other awards.

2. The advertisement of a school shall be in a form and manner that is free from misrepresentation, deception, or fraud and shall conform to the following:

a. The complete school name as listed on the license to operate shall be used in all publicity, publications, or promotions or for marketing purposes.

b. Advertisement shall not expressly or by implication indicate by any means that the license to operate represents an endorsement by the Virginia Department of Education or the Board of Education.

c. No fraudulent or misleading statement shall be in print or nonprint about the school's admission policy, tuition and fees; programs and services; size and location; or any other information concerning the school.

d. Endorsements, commendations, or recommendations by students, individuals, manufacturers, business establishments, or organizations are prohibited except with their written consent and without any offer of financial compensation.

e. The accrediting agency shall be named [ , using its official title ] if accreditation is used [ , ] as part of a school's promotional materials.

3. Prospective applicants may advertise projected services and staff positions while in the application process but shall not misrepresent licensure status and shall not enroll students prior to receiving a license to operate from the Superintendent of Public Instruction.

8VAC20-671-50. Types of licenses.

The following shall apply consistent with [ § §§ 22.1-323, ] 22.1-323.1 [ , and 22.1-323.2 ] of the Code of Virginia:

1. A conditional license [ shall may ] be issued [ to a new school that demonstrates compliance with administrative and policy requirements but has not demonstrated compliance with all requirements of this chapter upon approval of an application to operate a school for students with disabilities not to exceed a period of six months ].

[ a. ] A conditional license may be renewed [ for a period of six months when a new school demonstrates compliance with administrative and policy requirements but has not fully demonstrated substantial compliance with requirements of this chapter ].

[ b. The issuance of a conditional license and any renewals thereof shall be for no longer a period than six successive months.

2. A provisional license may be issued to a school that has demonstrated an inability to maintain compliance with this chapter or other applicable regulations.

a. A provisional license may be issued at any time.

b. A provisional license may be renewed.

c. The issuance of a provisional license and any renewal thereof shall be for no longer a period than six successive months.

3. 2. ] An annual license may be issued under the following conditions and may be extended for a period not to exceed [ six 36 ] successive months:

a. A school [ applies for renewal provides notice for continued licensure ] while holding a conditional or provisional license.

[ b. When a school holds a provisional license and ] substantially meets the requirements of this chapter;

[ b. The licensing agency determines that a major violation has occurred that impacts the overall operation of the school; or ]

c. [ The When a ] school makes significant changes in its operation.

[ 4. 3. ] A triennial license shall be issued when a school [ : holds an annual or triennial license and substantially meets the requirements of this chapter. ]

[ a. Applies for renewal while holding an annual or triennial license; and

b. Substantially meets or exceeds the requirements of this chapter and other applicable regulations.

5. 4. ] The term of a school's license may be [ modified at any time during the licensure period based on a change in the school's reduced to provisional when the school has demonstrated an inability to achieve or maintain ] compliance with this chapter [ and or ] other applicable regulations.

[ a. A provisional license may be issued at any time.

b. A provisional license may be renewed.

c. The issuance of a provisional license and any renewal thereof shall be for no longer a period than six successive months. ]

8VAC20-671-60. Change in condition.

A. A condition of a license may be modified during the term of the license with respect to: capacity of the school or classrooms; disability category or categories of students served; age range [ of students ]; [ grade levels, ] change in location; change in services; change in ownership; merger of schools; and enrollment of day student(s) in a residential setting.

B. A change in a condition shall not be implemented prior to approval by the [ licensing agency department ]. [ The licensing agency shall respond to the request and provide approval or denial in 10 calendar days following the date the request was received.

C. A change in a condition may not be approved during a provisional or conditional licensure period. ]

8VAC20-671-70. License to operate is nontransferable.

A change of ownership occurs when control of a school changes from one owner to another. If there is a change in ownership, the following shall apply:

1. The licensee shall notify the [ licensing agency department ] at least 30 calendar days prior to the proposed change.

2. The new owner shall submit an initial application for a license to operate to the [ licensing agency department ] within 30 calendar days following the effective date of the change in ownership.

3. The school may operate under the existing license for 60 calendar days from the effective date of the change in ownership at which time a conditional license may be issued.

8VAC20-671-80. Penalty for noncompliance in obtaining a license to operate.

[ Failure to obtain a license to operate Operating ] a school for students with disabilities [ without a license ] shall result in the following penalties allowed in § 22.1-331 of the Code of Virginia:

1. Any person who opens, operates, or conducts a school without first obtaining a license to operate [ may shall ] be [ found ] guilty of a Class 2 misdemeanor.

2. Each day [ such person who permits ] the school [ remains to be ] open [ and operate ] without a license [ to operate, the owner or board of directors ] shall incur a separate offense.

3. The [ licensing agency department ] shall refer [ to the Office of the Attorney General any alleged or known violation of this chapter. The Office of the Attorney General shall refer the matter any person who opens, operates, or conducts a school for students with disabilities without a license ] to the [ appropriate ] Commonwealth's attorney [ of proper jurisdiction ].

8VAC20-671-90. [ Directory List ] of private schools for students with disabilities.

The [ licensing agency department ] shall maintain a [ directory list ] of schools holding valid licenses to operate that shall be available to the public [ (§ 22.1-332 of the Code of Virginia) ]. The [ directory shall identify other applicable state licensing agencies over the school and list ] may include additional information to inform the public about the school's operation.

8VAC20-671-100. Initial application.

To obtain a license to operate a school for students with disabilities, an application shall be filed with the [ Virginia ] Department of Education. A completed initial application shall include the following:

1. Complete name [ and with ] physical [ address and mailing addresses ] of the school;

2. Name and address of owners, controlling officials, and managing employees;

3. Evidence that the applicant has [ conducted a needs assessment assessed the community's need for a new school ];

4. Evidence of the applicant's compliance with the applicable regulations of the State Corporation Commission when the school is owned by a partnership or corporation;

5. Narrative description of building and scale [ drawing drawings ] or copy of all floor plans including room use and dimensions;

6. Certificate of occupancy with educational use group or other report from the appropriate government agency or agencies indicating that the location meets applicable zoning, building code, use permit, business license, fire safety, and sanitation requirements;

7. Copy of the deed, lease, or other legal instrument authorizing the school to occupy such location;

8. Proposed working budget for the year showing projected revenue and expenses for the first year of operation and a balance sheet showing assets and liabilities; a three-year financial plan; and documentation of sufficient operating capital or line of credit to carry the school through the first year of operation;

9. Original signed surety bond, irrevocable letter of credit, or certificate of deposit to protect the contractual rights of parents and students;

10. Schedule of tuition and other fees and the procedure for collecting and refunding tuition;

11. Copies of all proposed advertisements;

12. Description of the education program to include disability category or categories to be served, enrollment capacity, [ grade level or levels, ] age range, gender, and course offerings;

13. Listing of instructional resources and equipment;

14. Description of related services;

15. School's policy manual;

16. Proposed staffing and organizational chart;

17. Job description for each position;

18. Parent/student handbook;

19. Statement [ of regarding ] transportation services if the school provides transportation for students;

20. Statement regarding provision of student lunches;

[ 21. Description of the behavior management program; ] and

[ 21. 22. ] Any other information necessary to complete the application process.

8VAC20-671-110. Applicant commitments.

Each application for a license to operate a school for students with disabilities shall contain the following commitments:

1. To conduct the school in accordance with all applicable regulations of the board;

2. To permit the board or department to inspect the school or classes being conducted therein at any time and to make available to the board or department, when requested to do so, all information pertaining to the activities of the school required for the administration of this chapter, including its financial condition;

3. To advertise the school at all times in a form and manner that is free from misrepresentation, deception, or fraud and to conform to provisions of the board governing such advertising;

4. To ensure that all representations made by an agent of the school are free from misrepresentation, deception, or fraud and to conform to provisions of the board governing such advertising;

5. To display the current license to operate prominently where it may be inspected by students, visitors, and the board or department; and

6. To maintain all premises, equipment, and facilities of the school in an adequate, safe, and sanitary condition.

8VAC20-671-120. Assessment of application.

A. The [ licensing agency department ] shall evaluate each application within 60 calendar days from the date received and advise the applicant in writing of approval or deficiencies.

B. The applicant shall correct all deficiencies within 30 calendar days from the date of the written assessment of the application. The [ licensing agency department ] may grant an extension for a reasonable period of time.

C. [ Any application that has not been approved within the allotted time period shall be denied and returned to the applicant. The applicant may reapply for a license 90 calendar days following the date of the returned application. The department shall conduct a review of the character, reputation, and status with other licensing agencies, and the responsibility of the applicant before issuing a license. ]

D. The [ licensing agency department ] may require the applicant to [ appear before a review committee for meet with department staff before ] final approval of the application.

8VAC20-671-130. On-site inspection.

Before a license can be issued [ to an applicant ], the [ licensing agency department ] shall conduct an on-site inspection or [ equivalent virtual inspection review photographs or videos ] of the school building and grounds to determine its suitability for the operation of a school for students with disabilities.

8VAC20-671-140. Renewal of licenses.

[ A. Sixty calendar days prior to the expiration of a license to operate, the licensee shall submit to the licensing agency notification of intent for continued operation of the school.

B. A. ] The license of each school that continues to operate as such shall be renewed on or before the anniversary date set by the [ licensing agency department ].

[ C. B. ] Each license that has not been renewed in accordance with this chapter shall expire [ and a new license shall be obtained from the board before such school may continue to operate. A new application must be submitted to the licensing agency ].

8VAC20-671-150. Monitoring.

The [ licensing agency department ] shall:

1. Make at least one [ announced or ] unannounced visit during the effective dates of the license to operate for the purpose of monitoring the school's compliance with this chapter;

2. Notify relevant local governments and placing and funding agencies of health and safety or human rights violations.

3. [ Notify the appropriate public agencies when a school's licensure status is lowered to provisional;

4. ] Cooperate with other [ state ] licensing agencies [ , specifically, the Department of Social Services and the Department of Behavioral Health and Developmental Services, ] in fulfilling licensing responsibilities [ . The licensing agency shall notify relevant local governments and placing and funding agencies when a school's licensure status is lowered to provisional.; and

5. Re-examine findings of noncompliance in consultation with the school administrator when there is disagreement and amend any written report as appropriate in seven business days. ]

8VAC20-671-160. Complaint resolution procedures.

A. A complaint may be filed with the [ licensing agency department ] by any individual or organization and shall address an action that occurred not more than one year prior to the date the complaint is received by the [ licensing agency department ].

B. A complaint must provide a statement of some disagreement with procedures or process regarding any matter relative to this chapter or other applicable regulations.

C. Upon receipt of a complaint, the [ licensing agency department ] shall initiate an investigation to determine whether the school is in compliance with applicable laws and regulations in accordance with the following procedures:

1. Within seven business days of the receipt of a complaint, the [ licensing agency department ] shall provide written notification to each complainant and the private school.

a. The notification sent to the school shall include:

(1) A copy of the complaint;

(2) An offer of technical assistance in resolving the complaint;

(3) A statement that the school has the opportunity to propose a resolution of the complaint;

(4) A request that the school submit within 10 business days of receipt of the letter of notification either:

(a) Written documentation that the complaint has been resolved; or

(b) If the complaint was not resolved, a written response including all requested documentation.

2. The [ licensing agency department ] shall review the complaint and the school's response and determine the need for any further investigation or corrections.

3. The [ licensing agency department ] shall notify appropriate agencies of serious violations.

4. During the course of the investigation, the [ licensing agency department ] shall:

a. Conduct an investigation of the complaint that shall include a complete review of all relevant documentation and may include interviews with appropriate individuals and an independent on-site investigation, if necessary.

b. Consider all facts and issues presented and the applicable requirements specified in this chapter or other applicable regulations.

c. Make a determination of compliance or noncompliance on each issue in the complaint based upon the facts and applicable regulations and notify the parties in writing of the findings and the bases for such findings. The [ licensing agency department ] has 60 calendar days after the written complaint is received to carry out the investigation and to [ resolve the complaint issue a letter of finding ]. An extension of the 60 calendar day time limit may occur if exceptional circumstances exist with respect to a particular complaint.

d. Ensure that the final decision is effectively implemented, if needed, through technical assistance activities, negotiations, and corrective actions to achieve compliance.

e. Notify the parties in writing of any needed corrective actions and the specific steps that shall be taken by the school to bring it into compliance with applicable timelines.

[ E. D. ] Parties to the complaint procedures shall have the right to appeal the final decision to the [ licensing agency department ] within 30 calendar days of the issuance of the decision.

[ F. E. ] When the school develops a plan of action to correct the violations, such plan shall include timelines to correct violations not to exceed 30 business days unless circumstances warrant otherwise. The plan of action shall include a description of all [ proposed ] changes [ contemplated ] and shall be subject to approval of the [ licensing agency department ].

[ G. F. ] If the school does not come into compliance within the period of time set forth in the notification, the [ licensing agency department ] may reduce or revoke the school's license to operate.

8VAC20-671-170. Denial, revocation, or suspension of license.

A. The [ superintendent board ] may refuse to issue or renew a license to operate or may revoke or suspend a license issued to any school pursuant to this chapter for the following causes [ (§ 22.1-329 of the Code of Virginia) ]:

1. Violating any provision of this chapter or regulation of the board;

2. Furnishing false, misleading, or incomplete information to the board or department or failure to furnish information requested by the board or department;

3. Violating any commitment made in an application for a license;

4. Presenting either by the school or by any agent of the school to prospective students information relating to the school which is false, misleading, or fraudulent;

5. Failing to provide or maintain premises or equipment in a safe and sanitary condition as required by law;

6. Making any false promises through agents or by advertising or otherwise of a character likely to influence, persuade, or induce enrollments;

7. Paying a commission or valuable consideration to any person for any act of service performed in willful violation of this chapter;

8. Failing to maintain financial resources adequate for the satisfactory conduct of courses of instruction offered or to retain a sufficient or qualified instructional staff;

9. Demonstrating unworthiness or incompetency to conduct the school in a manner calculated to safeguard the interests of the public;

10. Failing within a reasonable time to provide information requested by the board or department as a result of a formal or informal complaint to or by the board or department that would indicate a violation of these requirements;

11. Attempting to use or employ any enrolled students in any commercial activity whereby the school receives any compensation whatsoever without reasonable remuneration to the student, except to the extent that employment of students in such activities is necessary or essential to their training and is permitted and authorized by the board; or

12. Engaging in or authorizing any other conduct, whether of the same or of a different character from that specified in this section, that constitutes fraudulent or dishonest dealings.

[ B. The provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall be applicable to proceedings under this section. ]

8VAC20-671-180. Summary or final order of suspension.

[ The provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall be applicable to proceedings under this section. ] In compliance with § 22.1-329 of the Code of Virginia, the following shall apply:

1. In addition to the authority for other disciplinary actions provided in this chapter, the Superintendent of Public Instruction may issue a summary order of suspension of a license of a residential or day school for students with disabilities in conjunction with any proceeding for revocation, denial, or other action when conditions or practices exist in the school that pose an immediate and substantial threat to the health, safety, and welfare of the students who are residing or attending the school and the Superintendent of Public Instruction believes the operation of the school should be suspended during the pendency of such proceeding.

2. The summary order of suspension shall take effect upon its issuance and shall be served on the licensee or its designee as soon as practicable thereafter by personal service and certified mail, return receipt requested, to the address of record of the licensee. The order shall state the time, date, and location of a hearing to determine whether the suspension is appropriate. Such hearing shall be held no later than three business days after the issuance of the summary order of suspension and shall be convened by the Superintendent of Public Instruction or designee.

3. After such hearing, the Superintendent of Public Instruction may issue a final order of summary suspension or may find that such summary suspension is not warranted by the facts and circumstances presented. A final order of summary suspension shall include notice that the licensee may appeal the Superintendent of Public Instruction's decision to the appropriate circuit court no later than 10 days following issuance of the order. The sole issue before the court shall be whether the Superintendent of Public Instruction had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceeding. The concurrent revocation, denial, or other proceeding shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.

4. The willful and material failure to comply with the summary order of suspension or final order of summary suspension shall be punishable as a Class 2 misdemeanor. The Superintendent of Public Instruction may require the cooperation of any other agency or subdivision of the Commonwealth in the relocation of students who are residents of a home or facility whose license has been summarily suspended pursuant to this section and in any other actions necessary to reduce the risk of further harm to students.

8VAC20-671-190. Timeline for correction of unsatisfactory conditions.

In compliance with § 22.1-330 of the Code of Virginia, the board or department:

1. May, upon its own motion, and shall, upon the verified complaint in writing of any person setting forth facts that [ , ] if proved [ , ] would constitute grounds for refusal, suspension, or revocation of a license, investigate the actions of any applicant for or any person or persons holding or claiming to hold a license to operate [ a school ].

2. Before refusing to renew, revoking, or suspending any license, may grant such period of time as it deems reasonable to correct any unsatisfactory condition.

8VAC20-671-200. Governing body.

A. Each school shall use its complete name as [ listed printed ] on the license to operate for all publicity, publications, promotions, or marketing purposes.

B. Any governing board, body, entity, or person to whom it delegates the legal responsibilities and duties of the licensee shall be clearly identified.

8VAC20-671-210. Responsibilities of the licensee.

The licensee shall:

1. Appoint an individual(s) to whom it delegates the authority and responsibility to assume the administrative direction of the school. The appointment shall be in writing.

2. Develop and implement a written decision-making plan that shall include provision for a staff person with the qualifications of the school administrator or education program director to be designated to assume the temporary responsibility for the operation of the school in the absence of the school administrator. The plan shall include a current organizational chart.

3. Ensure that staff positions and responsibilities meet the needs of the population served.

4. Develop a written statement of the objectives of the school including a description of the target population and the program offerings.

5. Develop and implement written policies and procedures to monitor and evaluate the effectiveness of the education program on a systematic and ongoing basis and implement improvements when the need is determined.

6. Ensure compliance with applicable child labor laws.

7. Develop a written policy prohibiting the consumption of tobacco products, [ illegal ] drugs, and alcohol or being under the influence of intoxicating or hallucinogenic agents while on campus and at school-sponsored [ student ] activities.

8. Require as a condition of employment that any applicant who accepts employment full-time or part-time, permanent or temporary, [ including interns and ] volunteers [ to on a regular basis and will be alone with a student in the performance of his duties, or anyone who provides contractual services, including services of a student intern, on a regular basis and will be alone with a student in the performance of his duties shall ] submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant's fingerprints through [ Virginia's the ] Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant. [ In addition, where the applicant has resided in another state within the last five years, the school shall as a condition of employment determine if there are any founded complaints of child abuse or neglect in such state(s) pursuant to §§ 22.1-296.3 and 22.1-296.4 of the Code of Virginia.

Anyone who is hired or is approved to provide volunteer services, contractual services, or services of a student-intern on a regular basis and will be alone with students cannot begin working with children until the criminal history background check has been received by the school. ]

9. Require as a condition of employment that any applicant who accepts employment requiring direct contact with students, whether full-time or part-time, permanent or temporary, [ including interns and ] volunteers [ on a regular basis and will be alone with a student in the performance of his duties; or anyone who provides contractual services, including services of a student intern on a regular basis and will be alone with a student in the performance of his duties, shall ] provide written consent and necessary personal information for the school to obtain a search of the registry of founded complaints of child abuse and neglect maintained by the Department of Social Services [ pursuant to § 63.2-1515 of the Code of Virginia ]. [ Where the applicant has resided in another state within the last five years, the school shall as a condition of employment, determine if there are any founded complaints of child abuse or neglect in such state(s) pursuant to §§ 22.1-296.3 and 22.1-296.4 of the Code of Virginia.

a. Anyone who has not submitted to a search of the registry of founded complaints of child abuse and neglect maintained by the Department of Social Services shall not be permitted to work alone with children.

b. The results of the search of the registry must be received prior to permitting an applicant to work alone with children. ]

10. Notify the [ licensing agency department ] within five calendar days of any change in administration or newly appointed individual responsible for the day-to-day administration or operation of the school.

11. Ensure that all staff members receive annual professional development related to their job responsibilities.

12. Report to the [ licensing agency department ] within 10 business days lawsuits [ , settlements, or criminal charges relating to the operation of the school against or settlements with the licensee relating to the health and safety or human rights of students and any criminal charges against any staff that may be related to the health and safety or human rights of students ].

13. Develop and implement an accessible policy and procedures to handle [ grievances school related complaints ] from students, parents, and employees. [ Schools are required to provide written notification of the right to file a complaint with the department's private school licensure office.

14. The school shall have a written policy and procedure that the school does not discriminate according to state and federal law. ]

8VAC20-671-220. Fiscal accountability.

A. The licensee shall prepare at the end of each fiscal year:

1. An operating statement to include a month-to-month accounting of revenue and expenses for the fiscal year just ended;

2. A working budget showing projected revenue and expenses for the next fiscal year that gives evidence of sufficient funds to operate; and

3. A balance sheet showing assets and liabilities for the fiscal year just ended.

B. There shall be a system of financial recordkeeping that shows a separation of the school's accounts from all other records.

C. There shall be written policies and procedures that address the day-to-day handling of the school's funds.

D. The [ licensing agency department ] reserves the right to call for one of these two types of statements:

1. An audited financial statement certified by an outside independent certified public accountant in accordance with standards established by the American Institute of Certified Public Accountants; or

2. A financial statement that has been reviewed by an outside independent certified public accountant in accordance with principles established for reviews by the American Institute of Certified Public Accountants.

8VAC20-671-230. Protection of contractual rights.

In compliance with § 22.1-324 of the Code of Virginia, provisions for the protection of contractual rights shall include the following:

1. With each application, the applicant shall submit and maintain a guaranty instrument payable to the Commonwealth of Virginia to protect the contractual rights of students and other contracting parties.

2. The guaranty instrument shall be based on the school's approved capacity. A [ minimum ] guaranty of $10,000 for up to 25 students and $5,000 for each additional 25 students shall apply.

3. In the event a guaranty instrument is terminated, the license to operate will terminate within 30 calendar days if a replacement bond or other instrument is not filed with the [ licensing agency department ].

4. If a school collects no advance tuition other than equal monthly installments or receives payment after services have been rendered, the school may apply to the [ licensing agency department ] for exemption from the guaranty requirements.

8VAC20-671-240. Insurance.

A. The licensee shall maintain liability insurance covering the premises and the school's operation.

B. The licensee shall maintain liability insurance on all vehicles used to transport students, including vehicles owned by staff. [ The school shall obtain written consent from the parent to transport a student in a staff member's personal vehicle. ]

C. The members of the governing body and staff who are authorized to handle school or [ students' student ] funds shall be bonded [ or indemnified against employee dishonesty ].

8VAC20-671-250. Fundraising.

[ A. ] Written consent of the [ parent(s) or legal guardian and of a child age 14 or older parent ] shall be obtained before [ participating allowing a student to participate ] in any school fundraising activity.

[ B. No student shall be forced to participate in any school fundraising activity. ]

8VAC20-671-260. Relationship to the [ licensing agency department ].

The licensee shall make information available to the [ licensing agency department ] upon the requested due date in order to make a timely determination of compliance with this chapter and other applicable regulations and statutes. The [ licensing agency department ] may alter the term of a license if the school fails to comply in a reasonable time period.

8VAC20-671-270. Personnel policies and procedures.

A. The licensee shall have written personnel policies and procedures that include, but are not limited to, job qualifications, job descriptions, [ staff ] supervision, evaluation, [ grievance dispute resolution ], and termination.

1. The licensee shall develop and implement written policies and procedures that persons appointed or designated to assume the responsibilities of each position possess the education, experience, [ knowledge, ] skills, and abilities specified in the job description.

2. The licensee shall make written personnel policies and procedures accessible to each employee.

B. The licensee shall maintain a current organizational chart of all full-time and part-time positions.

8VAC20-671-280. Job qualifications.

A person who assumes or is designated to assume the responsibilities of a position or any combination of positions described in this chapter shall meet the qualifications of the position, comply with all applicable regulations for each function, and demonstrate a working knowledge of the policies and procedures applicable to the position.

8VAC20-671-290. Job descriptions.

A. There shall be a written job description for each position that includes job title; duties and responsibilities; job title of the immediate supervisor; and minimum education, experience, [ knowledge, ] skills, and abilities required for entry-level performance of the job.

B. A copy of the job description shall be given to each person assigned to a position at the time of employment or assignment.

8VAC20-671-300. School administrators.

A. The licensee shall designate [ one or more individuals an individual(s) who is a graduate of an accredited college or university and is ] responsible for the administrative operation of the school [ who serves as the instructional leader and is responsible for effective school management that promotes positive student achievement, and a safe and secure environment in which to teach and learn ]. [ This individual may also serve as the instructional leader. ]

B. [ As the instructional leader, the The ] school administrator [ is responsible for ensuring that students are provided an opportunity to learn and ] shall:

1. Protect the academic instructional time from unnecessary interruptions [ and disruptions and enable the professional teaching staff to spend the maximum time possible in the teaching/learning process by keeping to a minimum clerical responsibility and the time students are out of class ];

2. Seek to maintain a safe and secure school environment;

3. Involve the [ school ] staff [ of the school ] in identifying [ the types of ] staff development [ needed needs ] to improve student achievement and ensure [ that the ] staff [ participate in those activities participation ];

4. Analyze classroom practices and methods for improvement of instruction;

5. Ensure [ that students' student ] education records are maintained [ and that criteria used in making placement and promotion decisions, as well as any instructional interventions used to improve the student's performance, are included in the record confidentially ]; and

6. Monitor and evaluate the quality of instruction [ , provide staff development, and provide support that is designed and provide supports as needed ] to improve instruction.

C. The instructional leader shall hold a valid five-year renewable postgraduate professional license issued by the board with an endorsement in school administration and supervision or special education and have at least three years of experience working with students with disabilities.

D. The instructional leader or designee shall at all times be on the premises of the school while the school is in operation.

E. All staff on duty must know who is responsible for the administration of the school at any given time.

8VAC20-671-310. Teachers and staffing.

A. Each teacher shall meet the requirements of the [ Board of Education's ] Licensure Regulations for School Personnel (8VAC20-22).

[ 1. Schools where students are instructed by content or grade level endorsed teachers shall have available appropriately endorsed special education teachers to case manage IEPs and to provide disability specific technical assistance and instruction.

2. Schools offering only self-contained classroom instruction shall have teachers endorsed in either special education general curriculum or special education adapted curriculum depending on the functioning levels of the students. ]

B. Staffing shall be in accordance with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81) in the following settings:

1. A student with an Individualized Education Program (IEP) may be instructed with students without disabilities, as appropriate, and in accordance with the IEP.

2. A student with an IEP may receive services with children with the same disability or with children with different disabilities.

C. Teacher personnel assignments shall be in accordance with Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

1. General education qualified personnel who are knowledgeable about the students and their special education may implement special services in collaboration with special education personnel.

2. Special education services include those services provided directly to the student and those provided indirectly.

D. Teacher caseloads shall be assigned in accordance with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

1. If children with disabilities in a single building receive academic content area instruction from multiple special education teachers, the teachers' caseloads shall be determined by using a building average.

2. When special education personnel are assigned to provide services for students who do not have a disability under this chapter or are assigned to administrative duties, there shall be a reduction in the caseload specified in proportion to the percentage of school time on such assignment.

3. Special education personnel may be assigned to serve children who are not eligible for special education and related services as long as they hold appropriate licenses and endorsements for such assignments.

E. Staffing for early childhood special education shall be in accordance with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

1. Children of preschool ages (two to five, inclusive) who are eligible for special education may receive early childhood special education.

2. Students receiving early childhood special education may receive services together with other preschool-aged children with the same or with different disabilities.

F. A school may offer for consideration of approval an alternative staffing plan in accordance with the department's procedures. The department may grant approval for alternative staffing levels [ and teaching assignments ] upon request from private schools for students with disabilities seeking to implement innovative programs that are not consistent with the staffing levels outlined in the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (8VAC20-81).

8VAC20-671-320. Substitute teachers.

A. No substitute teacher shall be used to fill a vacant teaching position for more than 90 teaching days in such vacancy during one school year.

B. Substitute teachers shall be at least 18 years of age, hold a high school diploma or a [ general educational diploma General Educational Development ] (GED) [ certificate ], have two years of full-time postsecondary education or two years of [ successful ] work experience with children [ with disabilities or equivalent, and attend orientation to the school's policies and procedures ].

[ C. A substitute teacher employed to fill a teacher vacancy shall receive orientation to the school's policies and procedures. ]

8VAC20-671-330. Support staff.

A. School support personnel, including contractual service providers, shall meet the Board of Education's Licensure Regulations for School Personnel (8VAC20-22) or the requirements of another state or national accrediting agency.

B. Paraprofessionals and other ancillary staff shall be at least 18 years of age (21 years of age preferred), [ at a minimum ] hold a high school diploma or [ a general educational diploma General Educational Development ] (GED) [ certificate ], have two years of [ full-time successful ] work experience with children or completed two years of coursework in a related field, [ complete orientation conducted by the school administrator or designee regarding school policies and procedures and characteristics of students served, and work under the supervision of qualified staff or upon employment complete within 60 calendar days of hire training specific to the assigned student population and job duties as they relate to the academic and behavioral progress of students. Such training shall include individualized instruction and student behavior management, including principles and strategies to reduce interfering behavior, build positive skills, and enhance communication of students with autism spectrum disorders ].

C. No support staff shall be used as replacement for teachers or related service staff unless they meet the qualifications of the position.

D. Support staff who do not meet licensure or certification requirements shall not be given misleading work titles or titles that infer [ that ] they meet required credentials.

[ E. Paraprofessionals shall work under the supervision of qualified professional staff. ]

8VAC20-671-340. Staff supervision.

The licensee shall develop and implement written policies and procedures regarding the supervision of employees [ , full-time and part-time, ] and all other [ individuals working with children, including volunteers and interns staff including volunteers and student interns working in the school building or on school grounds ].

8VAC20-671-350. Staff development.

A. Within seven calendar days following [ their staff's ] begin date, each staff member responsible for working with students shall receive orientation of the school's philosophy, goals and objectives; duties and responsibilities of their position; and the school's policy and procedures for behavior intervention.

B. Within 14 calendar days following [ their staff's ] begin date [ and before an individual is alone supervising students ], all staff shall receive emergency preparedness and response training that shall include: alerting emergency personnel and sounding alarms; implementing evacuation procedures with particular attention to students with special needs; using, maintaining, and operating emergency equipment; accessing emergency information for students including medical information; and utilizing community support services.

C. Within 14 calendar days following [ their staff's ] begin date, [ all ] staff shall receive professional development on confidentiality; the school's administrative decision-making plan; and policies and procedures [ , including prohibited actions, ] that are applicable to their positions, duties, and responsibilities.

D. Within 30 calendar days following [ their staff's ] begin date, [ all ] staff shall receive training on the school's policy and procedures, including standard precautions, child abuse and neglect, [ and ] mandatory reporting [ , maintaining appropriate professional relationships and interactions among staff and students, and suicide prevention ].

[ E. Within 30 calendar days following their begin date, all staff responsible for medication administration shall have successfully completed an approved medication training program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medications. Staff shall meet this requirement before administering any medication to students and shall receive annual retraining.

F. E. ] All staff shall receive annual professional development and refresher [ in on the school's policies and procedures on standard precautions; ] emergency preparedness and response to include alerting emergency personnel and sounding alarms; implementing evacuation procedures with particular attention to students with special needs; [ and ] using, maintaining, and operating emergency equipment [ ; and accessing emergency information for students and staff including medical information and utilizing community supports ].

[ G. F. ] All staff shall receive annual professional development and refresher on behavior supports, child abuse and neglect, [ and ] mandatory reporting [ , maintaining appropriate professional relationships and interactions among staff and students, and suicide prevention ].

[ H. Each full-time staff person shall complete an additional 15 hours of annual training applicable to his job duties G. Each staff who works directly with students shall annually receive 15 hours of professional development related to student progress and academic achievement that is applicable to the population served and to their job duties ].

8VAC20-671-360. Personnel records.

A. Separate up-to-date personnel records shall be maintained for each full-time and part-time employee, student intern, and volunteer for whom background investigations are required by Virginia statute. Content of personnel records of volunteers, student interns, and contractual service providers shall include, at a minimum, documentation of compliance with requirements of Virginia laws regarding child protective services and criminal history background investigations.

B. [ A record Records ] shall be maintained for each staff to include:

1. A completed employment application or other documentation providing the individual's name, address, and telephone number;

2. Documentation of qualifications [ , including educational background and professional licensure or certification ];

3. Employment history;

4. Written references or notations of oral references;

5. Reports of required [ health examinations tuberculosis certificate ];

6. Annual performance evaluations;

7. Date of employment for each position held and date of separation;

8. Documentation of compliance with requirements of Virginia laws regarding child protective services and criminal history background investigations;

9. [ Documentation of Driving record verification from the ] Department of Motor Vehicles [ checks ] and a current copy of the driver's license for [ all ] staff who transport students;

10. Documentation of all training required by this chapter and any other training or professional development received by individual staff; and

11. A current job description.

C. All personnel records shall be maintained confidentially and retained in their entirety for a minimum of three years after staff's separation from the school.

8VAC20-671-370. School facilities and safety.

A. Each school shall be maintained in [ a manner ensuring ] compliance with the Virginia Uniform Statewide Building Code (13VAC5-63). [ Each school shall

1. Maintain B. Each school shall maintain ] a physical plant that is accessible, barrier free, safe, and clean [ ;. ]

[ 2. Provide 50 net square feet per occupant space for classrooms and suitable C. Each school shall provide safe and adequate instructional areas, ] space for administrative staff, pupil personnel services, library and media services, and physical education [ with consideration given to safety;. Schools established after the effective date of these regulations and classrooms added to existing buildings shall provide at least 50 square feet of classroom or instructional area per student excluding classroom fixtures. ]

[ 3. Provide D. Each school shall provide ] adequate, safe, and properly equipped classrooms [ and instructional areas, and where appropriate ], laboratories, play areas, and dining areas that meet the needs of students and instruction [ ; and. ]

[ 4. Provide E. Each school shall provide ] space for safe storage of items such as first aid equipment, medication, household supplies, school supplies, and equipment.

[ B. F. ] After the initial application, the school shall document annually that buildings and equipment are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51) and maintain records of regular safety, health, and fire inspections conducted and certified by local health and fire departments.

[ C. G. ] Building plans and specifications for new construction, change in use of existing buildings, and any structural modifications or additions to existing buildings shall be submitted in advance to the [ licensing agency department ] for approval.

[ D. H. ] Animals allowed on the premises shall be tested, inoculated, and licensed as required by law.

[ E. Smoking shall be prohibited at all times and in all school buildings, on all school grounds, and during off campus school-sponsored activities.

F. I. ] Swimming pools shall be inspected annually by the state or local health authorities or by a swimming pool business.

[ G. J. ] There shall be a written policy concerning [ the provision of ] safeguards for [ aquatic-related activities to include supervision by a certified lifeguard water-related activities and a provision that a certified lifeguard supervises all swimming activities ].

[ H. K. ] There shall be a written policy regarding safeguards for school-sponsored activities including adventure and wilderness activities.

[ I. L. ] There shall be [ an electronic two-way a ] communication system available to staff at all times in the classroom and during school-sponsored activities.

[ M. Schools shall have safeguards to be able to identify any visitor in the school building and on the premises during the school day. ]

8VAC20-671-380. Contingency plans.

A. A school shall have contingency plans for [ medical ] emergencies that include staff certification in cardiopulmonary resuscitation (CPR), [ abdominal thrust (Heimlich maneuver), and ] emergency first aid [ , and medication administration ].

B. The school administration shall ensure that the school has:

1. Written procedures to follow in emergencies such as fire, injury, illness, and violent or threatening behavior. Contingency plans should be developed with the assistance of state or local public safety authorities. Such plans shall be outlined in the student handbook and [ discussed reviewed ] with staff and students during the first week of each school year;

2. Space for the proper care of students who become ill; and

3. A written procedure for responding to violent, disruptive, or illegal activities by students on school property or during a school-sponsored activity.

C. Each school shall [ annually ] have at least [ three one ] tornado [ drills every school year in order that students may be practiced in such drills drill, at least one earthquake drill, and at least two lockdown drills, one in September and one in January ].

D. The school shall have a written emergency preparedness and response plan for all locations that addresses:

1. Documentation of contact with the local emergency coordinator to determine (i) local disaster risks, (ii) communitywide plans to address different disasters and emergency situations, and (iii) assistance, if any, that the local emergency management office will provide to the school in an emergency.

2. Analysis of the school's capabilities and potential hazards, including natural disasters, severe weather, fire, flooding, workplace violence [ , intruder, hostage situation, ] or terrorism, missing persons, riot, severe injuries, or other emergencies that would disrupt the normal course of service delivery.

3. Written emergency management policies outlining specific responsibilities for provision of administrative direction and management of response activities; coordination of logistics during the emergency; communications; life safety of students, employees, contractors, student interns, volunteers, and visitors; property protection; community outreach; and recovery and restoration.

4. Written emergency response procedures for assessing the situation; protecting students, employees, contractors, student interns, volunteers, and visitors; [ protecting ] equipment and education records; and restoring services.

5. Emergency procedures, which shall address:

a. Communicating with employees, contractors, [ volunteers, student interns, ] and community responders;

b. Warning and notification of students;

c. Providing emergency access to secure areas and opening locked doors;

d. Conducting evacuations to emergency shelters or alternative sites and accounting for all students;

e. Relocating students and staff, if necessary;

f. Notifying family members and legal guardians;

g. Alerting emergency personnel and sounding alarms; and

h. Locating and shutting off utilities when necessary.

6. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, designated escape routes, and list of major resources such as local emergency shelters.

7. Schedule for testing the implementation of the plan and conducting emergency preparedness drills.

8. Children who use wheelchairs, crutches, canes, or other mechanical devices for assistance in walking shall be provided with a planned, personalized means of effective egress for use in emergencies.

E. The school shall have emergency preparedness and response training for all employees, contractors, student interns, and volunteers that shall include responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures [ , ] including evacuation of students with special needs (i.e., deaf, blind, nonambulatory);

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency information for students including medical information; and

5. Utilizing community support services.

F. There shall be documented review of the emergency preparedness plan annually and revisions made if necessary.

G. Employees, contractors, student interns, and volunteers shall be prepared to implement the emergency preparedness plan in the event of an emergency.

H. Floor plans showing primary and secondary means of egress shall be posted on each floor in locations where they can easily be seen by staff and students.

I. The procedures and responsibilities reflected in the emergency procedures shall be communicated to all students within seven days following admission or a substantive change in the procedures.

J. At least one [ emergency ] evacuation drill [ (the simulation of the school's emergency procedures) ] shall be conducted [ each week during the first month of school and one each month thereafter ] in each building occupied by students [ at least once per week for the first 20 school days and then once a month for the rest of the school year and more often if necessary ].

K. Evacuation drills shall include, at a minimum:

1. Sounding of emergency alarms;

2. Practice in evacuating buildings and buses or vans;

3. Practice in alerting emergency authorities;

4. Simulated use of emergency equipment; and

5. Practice in securing student emergency information.

L. A record shall be maintained for each evacuation drill and shall include the following:

1. Buildings and buses or vans in which the drill was conducted;

2. Date and time of drill;

3. Amount of time to evacuate the buildings;

4. Specific problems encountered;

5. Staff tasks completed including head count and practice in notifying emergency authorities; and

6. The name of the staff members responsible for conducting and documenting the drill and preparing the record.

M. The record for each evacuation drill shall be retained for three years after the drill.

N. At least one staff member shall be assigned the responsibility for ensuring that all requirements regarding the emergency preparedness and response plan and the evacuation drill program are met.

O. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of students, the school shall notify the parent(s), the student's public school, placing agency, and [ licensing agency department ] as soon as possible, but no later than 24 hours after the incident occurs.

8VAC20-671-390. Weapons.

The licensee shall develop written policies and procedures governing prohibition of [ the possession and use of firearms, pellet guns, air guns, and other weapons on the school's premises and during school-related activities unless the weapons are in the possession of licensed security personnel or law-enforcement officers weapons on school property mandated in § 18.2-308.1 of the Code of Virginia. The staff and students shall be annually informed of the policies and procedures regarding the prohibition of weapons. ]

8VAC20-671-400. [ Strip searches Searches ].

[ A. Strip searches and body cavity searches are prohibited.

B. A. ] A school that does not conduct pat downs shall have a written policy prohibiting them.

[ C. B. ] A school that conducts pat downs shall develop and implement written policies and procedures that shall provide the following:

1. Pat downs shall be limited to instances where they are necessary to prohibit contraband;

2. Pat downs shall be conducted by personnel of the same gender as the student being searched;

3. Pat downs shall be conducted only by personnel who are specifically authorized to conduct searches by the school's written policies and procedures; and

4. Pat downs shall be conducted in such a way as to protect the subject's dignity and in the presence of one or more witnesses.

8VAC20-671-410. Student application and admission.

A. The school's written admission policy shall include:

1. A description of the population to be served;

2. A description of the types of services offered;

3. Admission procedures;

4. Exclusion criteria that identify behaviors or conditions the school will not accept; and

5. A description of how educational services will be delivered.

B. [ A summary of each The ] school's admissions policy, course offerings [ at each grade level ], and behavioral management program shall be made available to students, parents, and placing and licensing agencies.

C. Each school's admissions process shall be designed to determine the suitability of enrolling a student. The school shall accept and serve only those students whose needs are compatible with the services provided by the school.

D. [ The school shall provide written notification for a student's education records within five business days of the student's enrollment. Notification shall be made to the superintendent of the school division where the student last attended. The school shall request current information pertinent to the student's educational growth to include, but not limited to, the IEP, 504 Plan, or career development plan; plan of study; assessments; grades or transcript; discipline records; and health records Upon enrollment and at least annually, the school shall provide parents access to, or a copy of upon request, the school's policies and procedures, including those governing the management of student behavior, the school's curriculum, and the school's promotion and retention policies ].

E. [ When the student's education records are not provided during the application process, the school with written parental consent shall make a request within five business days of enrollment to the student's last attended school or the division superintendent or designee.

F. ] An application for admission is not to be construed as a binding instrument on the part of the student or the school.

[ F. G. ] A school may require the payment of a reasonable nonrefundable initial application fee to cover expenses in connection with processing a student's application provided [ it the school ] retains a signed statement in which the parties acknowledge their understanding that the fee is nonrefundable. No other nonrefundable fees shall be allowed prior to enrollment.

[ G. H. ] Any contract or enrollment agreement used by the school shall be in writing and clearly specify the following:

1. Complete name and physical address of the school;

2. Itemized cost of the program to include tuition, [ scholarships, and ] all other charges [ , and any scholarship amount applied to the cost of tuition ]; and

3. The school's contingency, cancellation, and refund policies.

[ H. I. ] Any contract or enrollment agreement used by the school becomes a legally binding instrument upon the school's written acceptance [ of the student ].

[ I. Each school that serves privately placed students shall offer access to a tuition insurance plan if the school financially obligates students for more than quarterly increments of annual tuition. ]

8VAC20-671-420. Standard school year and school day.

A. Each school shall have a standard school year of at least 180 [ instructional teaching ] days [ or a total of at least 990 teaching hours per year ]. The standard school day for students in grades 1 through 12 shall average at least [ 5-1/2 instructional five and one-half teaching ] hours [ (990 hours annual instructional time) or average 27 and one-half hours weekly ], excluding breaks for meals and recess, and a minimum of three [ instructional ] hours [ daily ] for kindergarten.

B. [ All students in grades 1 through 12 shall maintain a full day schedule of classes (5-1/2 hours) unless otherwise stated in the child's Individualized Education Program (IEP), Individualized Instruction Plan (IIP), 504 Plan, or other documentation. The private school shall initiate a team meeting to review the child's IEP, 504 Plan, or IIP when a student has a medical, mental, or physical condition that requires modification of the student's school schedule. ]

C. Each school shall have policies and procedures that address make-up days when the school is unable to meet the required instructional time.

8VAC20-671-430. [ School and community communications Community relationships ].

[ A. Each school shall promote communications and foster mutual understanding with parents and the community and use information from parents, citizens, business, and industry in evaluating the educational program.

B. At the beginning of each school year, the school shall provide to parents or guardians information on the availability of and source for receiving the curriculum for their child's core subjects and a copy of the school's promotion and retention policies and access to the school's policies and procedures.

Each school shall facilitate cooperative relationships with neighbors, the school system, local law enforcement, local government officials, and the community at large. ]

8VAC20-671-440. Philosophy, goals, and objectives.

A. Each school shall have a current philosophy, goals, and objectives that serve as the basis for all policies and practices and shall be developed using the following criteria:

1. The philosophy, goals, and objectives shall be developed with the advice of professional and lay people who represent the various populations served by the school and in consideration of the needs of the community and [ shall ] serve as a basis for an annual self-evaluation of the school.

2. [ The goals Goals ] and objectives shall [ (i) ] be written in plain language so as to be understandable to noneducators, including parents [ ; (ii) to the extent possible, be stated in measurable terms; and (iii) consist primarily of measurable objectives to raise student and school achievement in the core academic areas, to increase graduation rates, and to increase the quality of instruction through professional staff development and licensure ].

B. Copies of the school's philosophy, goals, and objectives shall be available upon request.

8VAC20-671-450. Student achievement expectations.

A. [ A process to identify and recommend Schools shall develop ] strategies to address the learning, behavior, [ and ] communication [ , or development of needs of ] individual students [ who are having difficulty in the educational setting shall be developed at each school in collaboration with the parent ].

B. Participation in the Virginia assessment program by students with disabilities shall be prescribed by provisions of their IEPs or 504 Plans. [ All students with disabilities shall be assessed with appropriate accommodations and alternate assessments when required. ]

C. Each school that serves students who anticipate earning a diploma and graduating from a [ public ] Virginia high school must follow the requirements for graduation outlined in the Regulations Establishing Standards for Accrediting Public Schools in Virginia (8VAC20-131).

D. The school shall cooperate with the public school in the administration of SOL tests [ to students with disabilities and students who need verified credits to graduate from a public high school in Virginia, and the administration of any other SOL tests ].

E. The school shall use testing and evaluation materials that are not racially or culturally discriminatory and do take into consideration the student's disabling condition(s), racial background, and cultural background.

[ 8VAC20-671-460. 8VAC20-671-490. ] Program of instruction and learning objectives.

A. Each school's instructional program shall reflect the written philosophy of the school. The methods, procedures, and practices shall reflect an understanding of and meet the applicable academic, vocational, therapeutic, recreational, and socialization needs of the students served.

B. The instructional program shall be designed to meet the needs of all students enrolled and shall educate students with age-appropriate peers [ unless it can be shown that for a particular child with a disability, the alternative placement is appropriate and documented on the student's IEP, IIP, or 504 Plan ].

C. Services shall be delivered in accordance with the student's IEP, IIP, or 504 Plan.

[ D. Children of preschool ages (two years to five years, inclusive) shall receive services determined by the child's IEP, IIP, or 504 Plan. ]

[ D. Each school serving students E. Students ] 14 years of age and older shall [ provide be provided ] opportunities [ for students ] to gain knowledge and occupational readiness skills necessary for successful transition to [ postsecondary education, ] training, employment, and independent living, as appropriate.

[ E. Each school shall provide opportunities for students to gain knowledge and occupational readiness skills necessary for successful transition to postsecondary training, education, employment and independent living skills, as appropriate. ]

F. Each school shall provide a program of instruction that [ supports the SOL clearly articulates learning outcomes ] for the core subjects: English, mathematics, science, and history/social science. [ Schools may use Virginia's Standards of Learning (SOL). ]

G. Each school shall require students to participate in a program of health and physical fitness during the regular school year unless the student is unable to participate due to a medical condition [ or has met the credit requirement for graduation ].

H. Each school shall provide students with opportunities to gain appreciation for art and music.

I. Each school shall provide an instructional program that promotes the individual student's developmental growth and academic achievement at successive grade levels, as appropriate.

[ J. The services provided by a private school shall be provided by personnel meeting the same licensure requirements as personnel providing services in the public school, outlined in Licensure Regulations for School Personnel (8VAC20-22).

K. J. ] The school shall equitably serve the needs and interests of all students, taking into consideration age appropriateness, cultural norms, physical abilities, and cognitive abilities.

[ K. Each school shall implement evidence-based practices to improve academic, behavior, and social outcomes for all students. ]

[ 8VAC20-671-470. 8VAC20-671-460. ] Individualized Education Program (IEP).

A. [ When a child is presently receiving the services of a private school, a A ] representative of the private school shall attend IEP meetings upon the request of the student's school division. If a representative is not able to attend, the school shall use other methods to ensure participation [ by the private school ] including individual or conference telephone calls.

B. [ After a child with a disability enters a private school, any Any ] meetings to review and revise the child's IEP may be initiated and conducted by the private school at the discretion of the student's school division.

C. If the private school initiates and conducts these meetings, the student's school division and the parent(s) shall:

1. Be involved in any decision affecting the child's IEP;

2. Agree to any proposed changes in the program before those changes are implemented; and

3. Be involved in any meetings that are held regarding reevaluation.

D. A [ parent(s) parent ] does not include local or state agencies or their agents, including local departments of social services, if the child is in the custody of such an agency.

E. When a child with a disability is placed by a local school division or [ a Comprehensive Services Act team family assessment and planning team ] in a private school, all rights and protections under state and federal regulations shall be extended to the child.

[ 8VAC20-671-480. 8VAC20-671-470. ] Individualized Instruction Program (IIP).

A. Students [ without disabilities not determined eligible for special education ] and those placed by parents [ for educational reasons ] shall have an Individualized Instruction Program (IIP) developed within 30 [ business ] days of [ admission enrollment ] that describes strengths and needs of the student, current level of functioning, goals and objectives, [ timelines, ] course of study, and postsecondary goals for students 14 years of age and older.

B. Each school shall request with [ written ] consent of the [ parent(s) parent ] the student's education records from the last school attended [ , ] and information from other agencies as appropriate. This information should be used in developing the student's IIP.

C. The IIP shall provide a beginning and ending date of services.

D. The IIP shall be reviewed at least annually by a team that includes the [ school administrator or teacher, other staff as appropriate, parent, and ] student [ and the parent as appropriate ].

E. Student progress reports shall be provided to the parent [ or guardian ] at least quarterly.

[ 8VAC20-671-490. 8VAC20-671-480. ] 504 Plans.

Each school admitting students with 504 Plans shall implement the plan and cooperate with the school division in its annual review. [ An individualized instruction plan (IIP) shall be developed for each student with a 504 plan. ]

8VAC20-671-500. Instructional program for elementary school grades.

[ A. The elementary school grades shall provide each student a program of instruction that supports the SOL for English, mathematics, science, and history/social science. In addition, each school shall provide opportunities for students to gain an appreciation for art and music. Students shall be required to participate in a program of health and physical fitness during the regular school year.

In addition to the applicable requirements under 8VAC20-671-490, the following shall apply: ]

[ B. 1. ] In kindergarten through grade 3, reading, writing, spelling, and mathematics shall be the focus of the instructional program.

[ C. 2. ] To provide students with sufficient opportunity to learn, a minimum of 75% of the annual instructional time of 990 hours shall be given to instruction in the disciplines of English, mathematics, science, and history/social science. Students who are not successfully progressing in early reading proficiency or who are unable to read with comprehension the materials used for instruction shall receive additional [ instructional time instruction ] in reading.

8VAC20-671-510. Instructional program for middle school grades.

[ A. The middle school grades shall provide each student a program of instruction that supports the SOL for English, mathematics, science, and history/social science. Each school shall provide opportunities for appreciation of art and music and an introduction to career and technical exploration and require students to participate in a program of health and physical fitness during the regular school year.

B. English, mathematics, science, and history/social science shall be required.

In addition to the applicable requirements under 8VAC20-671-490, the following shall apply: ]

[ C. 1. ] To provide students a sufficient opportunity to learn, each student shall be provided 140 clock hours per year of instruction in each of the four disciplines of English, mathematics, science, and history/social science.

[ D. 2. ] Each school shall ensure that students who are unable to read with comprehension the materials used for instruction receive additional instruction in reading.

[ 3. Each school shall provide students with opportunities for career and technical exploration. ]

8VAC20-671-520. Instructional program for secondary school grades.

[ A. The secondary school grades shall provide each student a program of instruction that supports the SOL in English, mathematics, science, and history/social science.

In addition to the applicable requirements under 8VAC20-671-490, the following shall apply: ]

[ B. 1. ] To provide students a sufficient opportunity to learn, each student shall be provided 140 clock hours per year of instruction in each of the four disciplines [ , English, mathematics, science, and history/social science ].

[ C. Students in secondary education programs who plan to graduate with a standard or advanced diploma from a Virginia public high school should have the opportunity to complete credits in foreign languages, fine arts, and career and technical training.

2. Each school shall provide a course of study that leads to graduation and postsecondary education, training, employment, and independent living, as appropriate.

3. Each school shall provide instruction in economics and personal finance and occupational readiness.

4. A curriculum that includes functional living skills training, including community-based instruction, shall be available for students as the need is determined by the IEP or IIP. ]

[ D. 5. ] Classroom driver education may count for 36 class periods of health education. Students shall not be removed from classes other than health and physical education for the in-car phase of driver education.

[ E. 6. ] Each school shall ensure that students who are unable to read with comprehension the materials used for instruction receive additional instruction in reading [ ,. ]

[ F. Guidance and counseling shall be provided for students to ensure that a program of studies contributing to the student's academic achievement and meeting graduation requirements is being followed.

7. Staff shall provide guidance and counseling to assist students in meeting graduation requirements. ]

8VAC20-671-530. Alternative education.

Schools may provide students, 16 years of age to 18 years of age [ who choose to prepare for the Tests of General Educational Development (GED) certificate ], an Individualized Student Alternative Education Plan (ISAEP) [ , a ] program [ that includes career guidance counseling; mandatory enrollment in a GED preparation program; and career and technical education ]. Implementation of the ISAEP [ program ] requires submission of an application and approval by the [ Department of Education department ].

8VAC20-671-540. Transition services.

A. Schools shall cooperate with the public schools to ensure that the transition plan for each student with a disability, beginning at 14 years of age (or younger), is implemented according to the child's IEP.

B. Schools shall provide evidence of transition services designed within an outcome-oriented process for all students, as appropriate, that promotes movement from the private school to a public school the child would normally attend; movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

8VAC20-671-550. Extracurricular and other school activities, and recess.

A. School-sponsored extracurricular activities shall be under [ the ] direct supervision of [ the ] staff and [ shall contribute to the educational objectives of the school. Extracurricular activities must be ] organized to avoid interrupting the instructional program.

B. [ School-sponsored extracurricular CPR and first aid certified staff shall accompany students on school-sponsored ] activities [ shall have at least one person certified in CPR for every 10 students ].

C. Schools that take students on [ outdoor ] adventure activities [ and offer programs such as canoeing, skiing, camping, and rock climbing ] shall develop policies and procedures to ensure supervision, health and safety, and medical management.

8VAC20-671-560. Family life.

A. Schools may use the Standards of Learning for the family life education program or other education program, [ which shall have the goals that is designed to promote parental involvement, foster positive self concepts, and provide mechanisms for coping with peer pressure and the stresses of modern living according to the student's developmental stage and has the goal ] of reducing the incidence of pregnancy and sexually transmitted diseases and substance abuse.

B. Schools offering family life shall obtain written consent from the parent [ or guardian ] for the child's [ enrollment in the course participation ].

8VAC20-671-570. Student work-study or on-the-job training.

A. Each school that places students on work-study, on-the-job training, or any other form of employment shall ensure compliance with the applicable laws governing the employment of children.

[ B. Work assignments that are paid or unpaid shall be in accordance with the age, health, ability, and education program of the student. ]

[ C. B. ] Work assignments or employment [ outside the school ], including [ reasonable ] rates of pay, shall be approved by the school administrator with the [ knowledge and ] consent of the parent [ or legal guardian ].

8VAC20-671-580. Virtual learning.

A. [ Schools are encouraged to pursue alternative means to deliver instruction to accommodate student needs through virtual learning. A school shall ensure that each virtual education course is provided by an institution accredited by a nationally recognized accrediting body or is authorized by a public school or school division. Virtual courses may only be offered through accredited providers as outlined in §§ 22.1-212.23 and 22.1-253.13:3 of the Code of Virginia. ]

B. [ A school shall ensure that virtual learning courses meet the following requirements:

1. The content, instruction, and assessment of each course is comparable in rigor and breadth to the course that is traditionally delivered;

2. The course content is appropriate for the school's grade levels and age range; and

3. The virtual learning shall be supervised by a licensed teacher or a person eligible to hold a Virginia teaching license. The individual shall be available to the student.

The virtual learning shall be proctored by a licensed teacher or appropriately trained paraprofessional who is supervised by a licensed teacher. The teacher or paraprofessional shall be available to the student. ]

8VAC20-671-590. Equipment, instructional materials, and library media.

A. Each school shall provide [ a variety of current grade-level instructional ] materials and equipment [ necessary ] to support the instructional program, including [ functional life skills programs the goals and objectives established for individual students ].

B. [ Each school shall provide access to computers and library media necessary to meet research inquiry and reading requirements of the instructional program and general student interest. Students shall receive instruction on the use of classroom equipment as appropriate and demonstrate applicable safety competencies before being allowed to use such equipment. ]

[ C. Each student, as appropriate, shall be provided instruction on the use of instructional equipment and shall demonstrate understanding before access to laboratories.

D. Each school shall provide textbooks and instructional materials that support Virginia's Standards of Learning.

E. C. ] Each school shall establish written policy on the use of computers, including the use of the Internet and email.

8VAC20-671-600. School records.

Each school shall maintain up-to-date records to include [ a listing of all enrolled students with directory information, ] the school's academic calendar, class roster, class schedule, course descriptions, course curriculum, individual student schedules, student progress reports, and [ student transcript or other ] documentation of [ each student's ] grades [ and credits earned ].

8VAC20-671-610. Diplomas.

A. No school shall use the seal of Virginia in its diploma design.

B. Each school that offers a diploma upon graduation shall have written [ policy policies ] and procedures that address the following:

1. The requirements for a diploma shall be those in effect when the student enters the ninth grade for the first time.

2. The requirements for a diploma shall be based upon completion of program requirements that demonstrate academic rigor.

8VAC20-671-620. Student conduct.

[ A. Each school shall provide a schoolwide environment that reinforces appropriate behaviors and assists students in becoming actively engaged in their own learning, academic, and behavioral success. ]

[ A. B. ] Each school shall have written policies and procedures that address standards of student conduct and procedures for enforcement to include attendance, truancy, suspension, expulsion, alcohol, drugs, weapons, fighting, bullying, sexual and disability harassment, pornography, and other areas as appropriate.

[ B. When a student is suspended, including in-school suspension, or expelled, the school shall notify the student's home school division within 24 hours. C. The parent shall be notified on the date on which the decision is made to suspend or expel a student because of a violation of a code of student conduct. When a publicly placed student is suspended or expelled, the student's home school division shall be notified within 24 hours. ]

8VAC20-671-630. Behavior intervention.

A. Each school shall develop and implement written policies and procedures that emphasize positive behavior interventions [ that focus on teaching and supporting students to practice methods to manage their own behavior ].

B. Behavior techniques that are used or available for use shall be listed in the order of their relative degree of restrictiveness and specify the staff members who may authorize the use of each technique.

C. Staff shall consider behavior management data in their annual review of the school's policies and procedures.

D. When substantive revisions are made to policies and procedures governing management of student behavior, written information concerning the revisions shall be provided to students, parents, placing agencies, and the [ licensing agency department ] prior to implementation.

[ E. The parent shall be provided access to the school's behavior management policy and procedures upon enrollment and at the beginning of each school year, and provided a written copy upon request. ]

8VAC20-671-640. Time-out.

[ A. The school shall have written policy and procedures governing the conditions under which a student may use time-out and the maximum period of time-out not to exceed 30 minutes per episode. The conditions and maximum period of time-out shall be based on the student's chronological and developmental level. The school's policy and procedures shall include provisions that address the following: Policies and procedures shall be written that govern the conditions under which a student may self-select or be placed in time-out and the maximum length of time a student may be in time-out. The conditions for time-out and length of time a student may be in time-out shall be based on the student's chronological and developmental levels. The school's policy and procedures shall include: ]

1. Each student is entitled to be completely free from any unnecessary use of time-out.

2. [ The areas in which a student is placed A door to a time-out room ] shall not be locked nor [ the door ] secured in a manner that prevents the student from opening it.

3. A student in time-out shall be able to communicate with staff.

4. Staff shall check on the student [ in the time-out area ] at least every 15 minutes and more often depending on the nature of the student's disability, condition, [ and or ] behavior.

5. [ Procedures shall be implemented for documenting the The ] use of time-out and staff checks on the student [ shall be documented ].

6. Staff shall review procedures when a student consistently chooses to stay in time-out beyond the determined time limit to determine that it has not become reinforcement.

8VAC20-671-650. Prohibitions.

[ A. ] The following actions are prohibited:

1. Restraint and seclusion, except when it is necessary to protect the student or others from personal harm, injury, or death and other less restrictive interventions were unsuccessful;

2. Prone "face down" restraints, mechanical restraints, [ and ] pharmacological restraints [ , and any other restraint that restricts breathing or harms the child or interferes with the child's ability to communicate ];

3. Deprivation of drinking water or food;

4. Limitation on contacts and visits [ with from ] the student's probation officer, [ regulators, or social worker, ] placing agency representative [ , or other service provider as appropriate ];

5. Any action that is humiliating, degrading, or abusive;

6. Corporal punishment;

7. Deprivation of approved prescription medication or other necessary services [ and treatment ];

8. Denial of access to toilet facilities;

9. Application of aversive stimuli;

10. Strip and body cavity searches; and

11. Discipline, restraint, or implementation of behavior management plans by other students.

8VAC20-671-660. Managing student behavior in emergency situations.

[ A. Application of a formal behavior management program designed to reduce or eliminate severely maladaptive, violent, or self-injurious behavior contingent upon the exhibition of such behaviors is allowed only as part of an individually approved time specific plan that is consistent with sound therapeutic practice. Written consent of the student, parent or guardian, and the student's school division is required.

B. A. ] Each school shall have written policies and procedures [ made available annually to students, parents, and placing agencies ] that include, but are not limited to:

1. Methods for preventing student violence, self-injurious behavior, and suicide, including de-escalation of potentially dangerous behavior occurring among groups of students or with an individual student.

2. A [ policy stating statement ] that corporal punishment and abusive techniques and interventions are not authorized, permitted, or condoned.

[ C. Each school shall develop and implement 3. A statement that ] behavior management techniques [ are applied ] in order of their [ relative ] degree of intrusiveness or restrictiveness and the conditions under which they may be used by trained [ school ] personnel.

[ D. While the use of restraint and seclusion is prohibited, a school that finds it absolutely necessary can only do so under the following conditions:

1. B. ] Physical restraint or seclusion is allowed only in an emergency situation [ for a time period that and only when it ] is necessary to [ contain the behavior of the student so that the student no longer presents an immediate threat of causing physical injury to self or others or causing severe property damage protect the student or another person from imminent danger of serious physical harm after less intrusive interventions have been attempted and failed to manage that particular behavior and there is a substantial explanation for why other interventions were deemed inadequate or inappropriate ].

[ 1. The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, shall trigger a review and, if appropriate, a revision of behavioral strategies currently in place to address dangerous behavior. If positive behavioral strategies are not in place, staff shall develop them.

2. In cases where a student has a history of dangerous behavior for which restraint or seclusion was considered or used, a school shall have a plan developed in consultation with the parent for (i) teaching and supporting more appropriate behavior and (ii) determining positive methods to prevent behavioral escalations that have previously resulted in the use of restraint or seclusion. ]

[ 2. 3. ] Physical restraint or seclusion shall not be used [ for disciplinary reasons, ] as a punishment [ , or ] retaliation, or for staff's convenience.

[ 3. The school shall have written policies and procedures governing use of physical restraint and seclusion incidents that shall include the following:

a. 4. ] Each student is entitled to be completely free from any unnecessary use of physical restraint or seclusion. [ Physical restraint and seclusion are allowed only in an emergency situation for a time period that is necessary to contain the behavior of the student so that the student no longer presents an immediate threat of causing physical injury to self or others or causing severe property damage.

b. The school shall provide written notice of its behavior management program to students, parent(s), and placing agency at the time of the student's enrollment.

c. 5. ] Staff shall [ continuously ] monitor the use of [ physical ] restraint and seclusion [ through continuous face-to-face observation, not solely by and shall not rely on ] an electronic surveillance device.

[ d. Restraints 6. Physical restraint ] may only be implemented, monitored, [ and or ] discontinued by staff who have [ been trained in the proper and safe use of restraint, including hands-on techniques received proper training ].

[ e. Students must be supervised by staff members trained in behavior intervention.

f. Schools shall inform the parent and placing agency of each incident of physical restraint or seclusion on the day of the occurrence and make available to the licensing agency upon request.

7. The door to any room in which a student is secluded may be held shut only when a staff member is personally securing it. The door must immediately disengage when the staff member steps away from it. The room must meet specification including size and viewing panels that ensure the student's safety at all times including during a fire or other emergency.

8. Schools shall permit parents to inspect any area used during an emergency for the purpose of seclusion.

9. The parent shall be informed on the day of each incident of physical restraint or seclusion. The student's home school division and placing agency shall be informed as soon as possible but within 24 hours of the occurrence. ]

[ g. 10. ] Each application of physical restraint or seclusion shall be fully documented in the student's record including date, time, staff involved, justification for the [ physical ] restraint or seclusion, [ behavior antecedents, ] less restrictive interventions that were unsuccessfully attempted prior to using physical restraint or seclusion, duration, description of method or methods of physical restraint techniques used, signature of the person completing the report and date, and reviewer's signature and date. [ The written report shall be made available to the parent within two business days of the occurrence and opportunity given for the parent and student, as appropriate, to discuss the matter with school staff.

11. Schools shall collect and annually report to the department the number of times restraint and seclusion were used during the school year. The data shall be disaggregated by students and number of occurrences. ]

8VAC20-671-670. Videotaping.

A. Schools shall have written policy and procedures regarding videotaping students while in school and any school-sponsored activity, including those used for staff training.

B. No student shall be videotaped without written consent of the parent and eligible student.

C. Any videotaping of students shall be maintained confidentially unless there is explicit written permission to release or disclose from the [ parent(s) parent ] and eligible student.

D. Buildings and grounds surveillance is not considered videotaping for the purpose of this chapter.

8VAC20-671-680. Referral for evaluation.

[ A. ] When a student [ , including those placed by their parent(s) or from out-of-state, ] is suspected of having a disability, the [ private ] school [ shall may ] make a referral to the division superintendent of the school division where the private school is located. Documentation of the referral notice shall be maintained in the student's record.

[ B. The school shall cooperate with the school division on child find activities. ]

8VAC20-671-690. Suspected child abuse and neglect.

A. Written policies and procedures related to child abuse and neglect shall comply with the requirements of § 63.2-1509 of the Code of Virginia and distributed to all staff members. Policies and procedures shall include:

1. Handling accusations against staff; and

2. [ Promptly referring suspected cases Reporting immediately, but under no circumstance later than 24 hours after having a suspicion of a reportable offense ] of child abuse and neglect to the [ local ] child protective services unit [ of the local department of social services of the county or city wherein the abuse or neglect was believed to have occurred or to the Department of Social Services toll-free child abuse and neglect hotline and for cooperating with the unit during any investigation ].

B. Any case of suspected child abuse or neglect occurring at the school or on a school-sponsored event or excursion shall be reported immediately to the student's parent [ , guardian, or both if appropriate, ] and the [ placing and licensing agencies department ]. For publically placed students, the home school division and the placing agency shall also be notified.

C. [ When a case of suspected Suspected ] child abuse or neglect [ is reported to child protective services, the school shall document: shall be immediately documented to include ] the following:

1. The date and time the suspected abuse or neglect occurred;

2. A description of the suspected abuse or neglect;

3. Action taken as a result of the suspected abuse or neglect;

4. The name of the person who made the report to child protective services; and

5. The name of the person to whom the report was made at the local child protective services unit.

[ D. Suspected child abuse shall be handled and reported as a serious incident. ]

8VAC20-671-700. Serious incident reports.

A. Any serious incident, accident, or injury to a student [ or medication error ] that occurs at the school or a school-sponsored activity shall be reported [ to the parent ] immediately, [ but ] no later than the end of the school day [ , to the parent, student's public school, placing agency, and licensing agency. A publically placed student's home school division and the placing agency shall be notified as soon as possible, but not later than 24 hours of the occurrence. ]

B. The school shall document the following:

1. The date and time the incident occurred;

2. A brief description of the incident;

3. The action taken as a result of the incident;

4. The name of the person who completed the incident report; and

5. The date and name of the person who made the report to the proper authorities.

C. The [ licensing agency department ] shall review [ all ] reports of serious incidents and investigate as appropriate [ using the complaint resolution procedures of this chapter ].

8VAC20-671-710. Medication and health.

A. Each student shall have on file evidence of a comprehensive physical examination prescribed by the State Health Commissioner from a qualified licensed (i) physician, (ii) nurse practitioner, or (iii) physician assistant acting under the supervision of a licensed physician. The examination must contain, at a minimum, information required on the Commonwealth of Virginia School Entrance Health Form.

B. Each student shall have an up-to-date certificate of immunization [ documenting the immunizations required by the Code of Virginia and State Board of Health’s Regulations for the Immunization of School Children (12VAC5-110) ].

C. Any student or staff with a [ disease or ] medical condition that is contagious or infectious shall [ be excluded take leave ] from school while in that condition unless attendance is approved by a qualified [ healthcare health care ] provider. Conditions meeting this requirement must be provided in the parent/student handbook or other print materials.

D. A first aid kit shall be maintained and readily accessible for minor injuries and medical emergencies in each building used for instruction or other school activity.

E. All medications shall be accepted only in the original container with written permission signed and dated by the parent to administer to [ his the ] child. The use of all prescriptive medication must be authorized in writing by a licensed prescriber.

F. All medication and medical paraphernalia shall be [ securely locked and properly labeled properly labeled and securely locked or stored in accordance with the Virginia School Health Guidelines ].

[ G. A program of medication administration shall be initiated for a student only when prescribed in writing by a person authorized by law to prescribe medication and written consent from the parent is obtained to administer.

H. G. ] An individual medication administration record shall be maintained for each medication a student receives and shall include student name, date the medication is to begin, drug name, schedule for administration, strength, route, identification of the individual who administered the medication, and dates the medication was discontinued or changed.

[ I. H. ] The provider shall develop and implement written policies and procedures regarding:

1. Managing medication errors to include the following: administering first aid; contacting the poison control center; notifying the prescribing physician; taking action as directed; documenting the incident; reviewing medication errors and staff responses; and reporting errors to the parent and placing agency.

2. Handling adverse drug reactions;

3. Revising procedures as events may warrant;

4. Disposing of medication and medical supplies such as needles, syringes, lancets, etc.;

5. Storing of controlled substances;

6. Distributing medication off campus; and

7. [ Medication refusal to include who is responsible for documentation, where it will be documented and action taken by staff Documenting medication refusal ].

[ J. I. ] The telephone number of a regional poison control center and other emergency numbers shall be posted on or near the phone.

[ K. J.]. Medication training.

1. All staff responsible for medication administration shall have successfully completed [ a ] medication training [ , including refresher training, in a ] program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medication before they can administer medication.

2. Training shall be provided to [ all ] staff in medication procedures and effects and infection control measures, including the use of standard precautions.

3. [ There shall be a ratio of one staff member to 10 students Staff ] certified in first aid and CPR [ and shall be ] available at all times on the school grounds and during any school-sponsored activity.

4. Documentation of medication training must be maintained in personnel files.

5. Staff authorized to administer medication shall be informed of any known side effects of the medication and the symptoms of the effects.

[ L. K. ] Monitoring the supply of medications.

1. Upon receiving any medication, staff members handling medication shall count individual tablets and measure the level of liquid medicine in the presence of the parent(s) or another staff member and record the count on the medication log.

2. The medication log shall include the signature or initials of the staff member who counted the medication and the parent or staff who witnessed the occurrence. When initials are used, the medication administration record must contain the full name of the staff with corresponding initials for identification purposes.

3. Students shall be prohibited from transporting medication [ unless directed otherwise by the student's health care plan ].

8VAC20-671-720. School nutrition.

A. Schools with [ internal ] food service shall [ serve to each student on a daily basis a daily ensure a ] diet that (i) consists of nutritionally balanced meals, (ii) includes an adequate variety and quantity of food for the age of students, and (iii) meets [ the ] minimum requirements [ and of ] the [ U.S. ] Dietary Guidelines [ for Americans, 2010, U.S. Department of Agriculture and U.S. Department of Health and Human Services, 7th Edition, December 2010 ].

[ B. Schools with internal food service shall ensure that all 1. All ] food safety and sanitation procedures [ are shall be ] followed in accordance with state and federal regulations.

[ C. 2. ] Records of menus for all meals served shall be kept on file for six months.

[ D. Special diets shall be provided 3. Provisions shall be made for special diets ] when prescribed by a physician or requested by the student or parent because of the student's established religion.

[ E. B. ] In schools where students are required to bring their own lunch, provisions shall be made to ensure a meal for all students.

8VAC20-671-730. Transportation.

A. [ Each school shall have on file evidence that any vehicles used for the purpose of transporting students to and from school and school-related activities meet federal and state regulations, including: Transportation provided for or used by students shall comply with local, state, and federal laws relating to: ]

1. Vehicle safety and maintenance;

2. Licensure of vehicles;

3. Licensure of drivers;

4. [ Vehicle liability insurance Child passenger safety, including requiring children to wear appropriate seat belts or restraints for the vehicle in which they are being transported ];

5. [ Child passenger safety, including requiring students to wear seat belts or restraints Vehicle liability insurance ]; and

6. Safety measures that take into consideration the age and disabling conditions of students.

B. All vehicles used to transport students to school activities shall be equipped with first aid kits, a fire extinguisher, and two-way communication devices.

C. Individual student emergency information including currently prescribed and over-the-counter medications, significant medical problems, and any allergies shall accompany students when they are being transported.

8VAC20-671-740. [ Treatment services (Reserved.) ]

[ Licensed providers of treatment services shall coordinate those services to allow students to receive the required hours of instruction to the extent possible. When treatment services are not prescribed by a licensed mental health professional, the student shall receive the required number of hours of instruction. ]

8VAC20-671-750. Student discharge.

A. Each school shall have policies and procedures that address conditions for which a student may be discharged from the school.

B. The school's criteria for discharge shall be made available to prospective students, parents, and placing agencies before their enrollment.

C. The student's education record shall be documented with the date of discharge and reason for discharge.

D. Students shall be discharged only to the parent or legally authorized representative.

8VAC20-671-760. Maintenance of student records.

A. The school shall have written policy and procedures for the management of all records, print and nonprint, regarding confidentiality, accessibility, security, [ and ] retention [ , and disposition ].

B. Student education records shall be maintained in [ fireproof fire resistant ] cabinets [ and protected from unauthorized disclosure ].

C. Each student's education record shall contain information pertinent to the educational growth and development to include a completed enrollment sheet; a current IEP, 504 Plan, or IIP; student transcript; course of studies; and progress reports. Other information should include disciplinary records, health records, and achievement and test data.

D. [ A school shall obtain written Written ] consent from the child's parent [ shall be obtained ] before disclosure of information from a student's education record to unauthorized parties. Authorized parties shall be limited to school employees, including contracted employees, and representatives of [ placing school divisions, accrediting agencies, and ] state licensing agencies who need access to the student's records to carry out their work responsibilities.

E. [ A school may disclose information Information may be disclosed ] in an emergency to any person who needs that particular information for the purpose of preventing injury to a student or staff. The school shall not disclose any information that is not needed for this specific purpose. [ The school may disclose any records if they are properly subpoenaed, if a court orders them to be produced, to the school's own legal counsel, or to anyone working on behalf of their legal counsel in providing representation to the school. ]

F. The school shall permit a parent [ or parents ] to inspect and review any education records relating to [ their the ] child that are collected, maintained, or used by the school. The school shall comply with a request without unnecessary delay and before any meeting regarding an IEP or 504 Plan [ or in no case more than 14 calendar days after the request has been made ]. The right to inspect and review education records under this section includes:

1. The right to a response from the school to reasonable requests for explanations and interpretations of the records;

2. The right to request that the school provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records;

3. The right to have a representative of the parent inspect and review the records; and

4. A school may presume that a parent has authority to inspect and review records relating to his child unless the school has been advised that the parent does not have the authority under applicable Virginia law governing such matters as guardianship, separation, and divorce.

G. Each school shall keep a record of parties, except parents and authorized employees of the school, obtaining access to education records collected or maintained, including the name of the party, the date of access, and the purpose of the access.

H. If any education record includes information on more than one child, the [ parent(s) of those children have parent has ] the right to inspect and review only the information relating to [ their his ] child or to be informed of the specific information requested.

I. Schools may charge a fee for copies of records that are made for a [ parent(s) parent ] under this chapter if the fee does not effectively prevent the [ parent(s) parent ] from exercising [ their his ] right to inspect and review those records. A school may not charge a fee to search for or to retrieve information under this section.

J. A [ parent(s) parent ] who believes that information in the education records collected, maintained, or used under this chapter is inaccurate or misleading or violates the privacy or other rights of the child may request the school that maintains the information to amend the information.

1. The school shall decide whether to amend the information in accordance with the request within a reasonable period of time [ of receipt of the request ].

2. If the school decides to refuse to amend the information in accordance with the request, it shall inform the [ parent(s) parent ] of the refusal and inform the parent of the right to place in the child's education records a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the school.

3. Any explanation placed in the records of the child under this section must:

a. Be maintained by the school as part of the records of the child as long as the record or contested portion is maintained by the school; and

b. If the records of the child or the contested portion is disclosed by the school to any party, the explanation must also be disclosed to the party.

K. [ Records retention.

1. Each school shall maintain all education records, including discipline and medical records for as long as the student continues enrollment at the school.

2. When a student transfers to another school, the student's complete education record shall be transferred within five business days from the date of request and notification of the transfer to the parent, guardian, and placing agency.

3. When a student graduates or leaves school, the school shall offer all records to the eligible student or parent(s). The records of a publicly placed student who graduates or leaves school shall be transferred to the child's public school.

When a privately placed student graduates or leaves school, the student's education record shall be offered to the eligible student or parent. The records of a publically placed student who graduates or leaves school shall be transferred to the child's home school.

L. Each school shall maintain a permanent record of attendance to include the following: ]

[ a. 1. ] Name and address of school;

[ b. 2. ] Name, address, and birth date of student;

[ 3. Name and address of the home school division for publically placed students; ]

[ c. 4. ] Name and address of [ the ] parent [ or parents ];

[ d. 5. ] Student ID [ number ];

[ e. 6. ] Dates of attendance; [ and ]

[ f. Verification of immunizations

g. Scholastic work completed; and

h. Academic transcript.

7. Academic transcript ].

8VAC20-671-770. Participation of students in human research.

A. No human research involving students shall be conducted or authorized by any school unless in compliance with [ the Board of Education's regulation, 8VAC20-565, or other applicable law, including §§ 32.1-162.16 through 32.1-162.20 of the Code of Virginia and ] 45 CFR Part 46.

B. No such research shall be conducted or authorized unless the student and the student's legally authorized representative give their informed consent. Such informed consent shall be by a signed and witnessed informed consent form. Such form shall comply with § [ 32.1-162 32.1-162.18 ] of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or designee at least annually a report on the student projects reviewed and approved by the committee, which shall state significant deviations from the proposals as approved.

D. There shall be excluded from the operation of this chapter those categories of research in § 32.1-162.17 of the Code of Virginia that exempt research or student learning outcomes as conducted in educational settings involving regular or special education instructional strategies; the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods; or the use of educational tests, whether cognitive, diagnostic, aptitude, or achievement, if the data from such tests are recorded in a manner so that subjects cannot be identified, directly or through identifiers linked to the subjects.

8VAC20-671-780. Procedures for [ permanent ] school closing.

A. A school that ceases operation shall provide written notice as early as possible to all enrolled students, the parent(s), the student's public school, and licensing agencies.

B. All advertisements of the school's operation shall cease immediately, and the current license to operate shall be returned promptly to the [ licensing agency department ].

C. If privately placed students are unable to complete the academic year due to the school's closing, the school's guaranty instrument shall be used for tuition reimbursement to the fullest extent allowable.

D. All education records of privately placed students shall be provided to the parent or student who has reached 18 years of age and acknowledgement of such to the [ licensing agency department ].

E. All education records of publicly placed students shall be returned to the school division of the parent's residence and acknowledgement of such to the parent or student who has reached 18 years of age, and the [ licensing agency department ].

[ FORMS (8VAC20-671)

2015 -2016 Application to Operate a Private School for Students with Disabilities (rev. 7/15)

School Entrance Health Form, MCH 213G (rev. 3/14) ]

[ DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-671)

Virginia School Health Guidelines - General Guidelines for Administering Medication in School (pages 253-256), May 1999, published by the Virginia Department of Health and printed by the Virginia Department of Education

Dietary Guidelines for Americans 2010, 7th Edition, December 2010, U.S. Department of Agriculture and U.S. Department of Health and Human Services, Washington, D.C.: U.S. Government Printing Office, www.dietary guidelines.gov ]

Title of Regulation: 9VAC25-20. Fees for Permits and Certificates (amending 9VAC25-20-40, 9VAC25-20-50, 9VAC25-20-146, 9VAC25-20-147).

Statutory Authority: §§ 62.1-44.15 and 62.1-44.15:6 of the Code of Virginia.

Effective Date: October 1, 2015.

Agency Contact: William K. Norris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4022, FAX (804) 698-4347, or email william.norris@deq.virginia.gov.

Summary:

The amendments (i) delete the fee exemption for the land application of materials classified as exceptional quality biosolids; (ii) add a fee of $3.75 on each dry ton of exceptional quality biosolids cake sewage sludge that is land applied, beginning October 1, 2015; and (iii) clarify the distinction between Class B biosolids and exceptional quality biosolids for recordkeeping and reporting requirements. The amendments conform the regulation to changes in the Code of Virginia enacted by Item 361 of Chapter 665 of the 2015 Acts of Assembly.

9VAC25-20-40. Applicability.

A. This chapter applies to:

1. All applicants for issuance of a new permit, permit authorization or certificate, or reissuance of an existing permit, permit authorization or certificate, except as specifically exempt under 9VAC25-20-50 A. The fee due shall be as specified under 9VAC25-20-110 or 9VAC25-20-130.

2. All permit, permit authorization or certificate holders who request that an existing permit, permit authorization or certificate be modified, except as specifically exempt under 9VAC25-20-50 A 3 or 9VAC25-20-50 A 6. The fee due shall be as specified under 9VAC25-20-120.

3. All land appliers land applying biosolids on permitted sites in the Commonwealth of Virginia, except as specifically exempt under 9VAC25-20-50 C. The fee due shall be as specified under 9VAC25-20-146.

B. An applicant for a permit, permit authorization or certificate involving a permit that is to be revoked and reissued shall be considered an applicant for a new permit. The fee due shall be as specified under 9VAC25-20-110.

C. Permit maintenance fees apply to each Virginia Pollutant Discharge Elimination System (VPDES) permit holder and each Virginia Pollution Abatement (VPA) permit holder, except those specifically exempt under 9VAC25-20-50 B of this chapter. The fee due shall be as specified under 9VAC25-20-142.

D. Virginia Water Protection (VWP) Individual/Minimum Instream Flow permit fees apply to any permit for the construction of an intake on a stream or river, or to any permit for the construction of a new intake on an existing reservoir. The fee due shall be as specified under 9VAC25-20-110 or 9VAC25-20-120, as applicable.

E. VWP Individual/Reservoir permit fees apply to any permit for the construction of a new reservoir, or the expansion of an existing reservoir in which one of the purposes of the reservoir is for water supply. The fee due shall be as specified under 9VAC25-20-110 or 9VAC25-20-120, as applicable. VWP Individual/Reservoir permit fees do not apply to the construction of any impoundment, pond or lake in which water supply is not part of the project's purpose.

9VAC25-20-50. Exemptions.

A. No permit application fees will be assessed to:

1. An applicant for a permit, permit authorization, certificate or special exception pertaining to a farming operation engaged in production for market.

2. An applicant for a permit, permit authorization, or certificate pertaining to maintenance dredging for federal navigation channels or other U.S. Army Corps of Engineers-sponsored or Department of the Navy-sponsored dredging projects.

3. Permit holders who request minor modifications or minor amendments to permits, permit authorizations or certificates as defined in 9VAC25-20-10.

4. Permit, permit authorization or certificate holders whose permits, permit authorizations or certificates are modified or amended at the initiative of the board.

5. VPDES permit holders or VPA permit holders for the regularly scheduled renewal of an individual permit for an existing facility, except VPDES and VPA permit holders whose permits expire on or before December 27, 2004.

6. An applicant for a permit, permit authorization, permit modification, or certificate pertaining solely to biosolids research.

B. No permit maintenance fees will be assessed to:

1. VPDES and VPA facilities operating under a general permit.

2. Permits pertaining to a farming operation engaged in production for market.

3. Virginia Water Protection (VWP), Surface Water Withdrawal (SWW), and Ground Water Withdrawal (GWW) permits, permit authorizations, certificates and special exceptions.

4. Permits pertaining solely to biosolids research.

C. No fee shall be imposed on the land application of materials classified as "exceptional quality biosolids" or the equivalent thereof, as defined by 9VAC25-32.

Part IV
Biosolids Fees and Reimbursable Costs

9VAC25-20-146. Established fees.

A. Land appliers shall remit the established fees to the department as specified in this regulation. The land appliers shall collect the required fees from the owners of the sewage treatment works and facilities that generate the Class B biosolids and exceptional quality biosolids cake that are land applied. Such works and facilities shall be approved sources of biosolids in accordance with this regulation 9VAC25-31 or 9VAC25-32. Land application shall only include biosolids from approved sources as listed in the land application permit. The established fee shall be imposed on each dry ton of Class B biosolids and exceptional quality biosolids cake that is land applied in the Commonwealth of Virginia in accordance with 9VAC25-31 or 9VAC25-32.

B. The amount of the established fee and disbursement are as follows:

1. The fee shall be $7.50 per dry ton of Class B biosolids land applied in the Commonwealth of Virginia.

2. The fee shall be $3.75 per dry ton of exceptional quality biosolids land applied as a cake in the Commonwealth of Virginia.

2. 3. Disbursement of the established fees collected by the department shall be made to reimburse or partially reimburse those counties, cities and towns with duly adopted local ordinances that submit documentation of reimbursable expenses acceptable to the department as provided for in this regulation.

3. 4. Disbursement of the established fees collected by the department shall be made to reimburse the Department of Conservation and Recreation's costs for implementation of the biosolids application program.

9VAC25-20-147. Records and reports.

A. Records. Permittees shall maintain complete records of the land application activities and amounts of Class B biosolids and exceptional quality biosolids cake that they land apply in the Commonwealth of Virginia. Such records shall be maintained by the permittee for five years after the date of the activity in a form that is available for inspection by the department. Records of land application activities shall include at minimum:

1. Name of permittee, DEQ permit number, and dates of activity.

2. Identification of land application site, including the DEQ control number.

3. The source of biosolids, whether the biosolids are Class B or exceptional quality cake, and field area receiving those biosolids.

4. The amount of biosolids applied in dry tons, by class, and the method and calculations used to determine the reported value.

5. Name of responsible representative of permittee and a statement signed and dated by that representative indicating that the information submitted has been verified by that representative as correctly reported in accordance with this regulation.

B. Reports and notification. The permittee shall submit a monthly report by the 15th day of each month for land application activity that occurred in the previous calendar month, unless another date is specified in the permit in accordance with 9VAC25-32-80 I 4. The report shall include (i) the recorded information listed in subsection A of this section and (ii) a calculation of the total fee. The submitted report shall include a summary list of the total amount of Class B biosolids and exceptional quality biosolids cake applied and the calculated fee based on the land-applied Class B biosolids and exceptional quality biosolids cake for each county in which land application occurred. If no land application occurs under a permit during the calendar month, a report shall be submitted stating that no land application occurred.

Title of Regulation: 9VAC25-110. Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Domestic Sewage Discharges of Less Than or Equal to 1,000 Gallons Per Day (amending 9VAC25-110-10 through 9VAC25-110-80; adding 9VAC25-110-15).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.

Public Hearing Information:

August 25, 2015 - 3 p.m. - Department of Environmental Quality, Piedmont Regional Office, 4949-A Cox Road, Glen Allen, VA

Public Comment Deadline: September 25, 2015.

Agency Contact: Allan Brockenbrough, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4147, FAX (804) 698-4032, or email allan.brockenbrough@deq.virginia.gov.

Announcement of Periodic Review and Small Business Impact Review: Pursuant to Executive Order 17 (2014) and § 2.2-4007.1 of the Code of Virginia, the agency is conducting a periodic review and small business impact review of this regulation to determine whether this regulation should be terminated, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Summary:

The proposed amendments reissue the existing Virginia Pollutant Discharge Elimination System general permit for domestic sewage discharges of less than or equal to 1,000 gallons per day (VAG40) that will expire on August 1, 2016. The general permit contains effluent limitations, permit conditions and monitoring requirements for domestic sewage discharges to surface waters from treatment works with a design discharge flow of less than or equal to 1,000 gallons per day on a monthly average. The permit requirements are designed to protect the quality of the waters receiving the treated wastewater discharges. Amendments are proposed to update and clarify definitions, effective dates, authorization to discharge, registration statement requirements, general permit limits pages, special conditions, and conditions applicable to all permits. The amendments include (i) adding a limit set for discharges to receiving waters subject to the Policy for the Potomac River Embayments (9VAC25-415); (ii) requiring owners of treatment works serving buildings or dwellings other than individual single family dwellings to submit the monitoring results to the Department of Environmental Quality on a Discharge Monitoring Report (DMR) after each monitoring period; and (iii) requiring owners of treatment works serving buildings or dwellings other than individual single family dwellings to maintain a log of all maintenance performed on the treatment works and submit the log to the department along with the facilities monitoring results.

9VAC25-110-10. Definitions.

The words and terms used in this chapter shall have the same meanings as given in the State Water Control Law, Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia and the VPDES Permit Regulation (9VAC25-31), unless the context clearly indicates otherwise, except that for the purposes of this chapter:

"7Q10" means the lowest flow averaged over a period of seven consecutive days that can be statistically expected to occur once every 10 climatic years.

"Board" or "State Water Control Board" means the Virginia State Water Control Board.

"Climatic year" means a year beginning on April 1 and ending on March 31.

"Combined application" means the Virginia Department of Health Discharging System Application for Single Family Dwellings Discharging Sewage Less Than or Equal to 1,000 Gallons per Day and State Water Control Board Virginia Pollutant Discharge Elimination System General Permit Registration Statement for Domestic Sewage Discharges Less Than or Equal to 1,000 Gallons per Day. This application combines the VDH Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings (12VAC5-640) requirements with the board's registration statement requirements.

"Department" or "DEQ" means the Virginia Department of Environmental Quality or the department.

"Domestic sewage" means the water-carried human wastes from residences, buildings, industrial establishments or other places.

"Individual single family dwelling" means a residence housing one family or household or one that is designed for one family only.

"Receiving water" means a creek, stream, river, lake, estuary, groundwater formation, or other body of water into which treated waste or untreated waste is discharged.

"Total maximum daily load" or "TMDL" means a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for point source discharges, and load allocations (LAs) for nonpoint sources or natural background or both, and must include a margin of safety (MOS) and account for seasonal variations.

"VDH" means the Virginia Department of Health.

9VAC25-110-15. Applicability of incorporated references based on the dates that they became effective.

Except as noted, when a regulation of the U.S. Environmental Protection Agency set forth in Title 40 of the Code of Federal Regulations (CFR) is referenced and incorporated herein, that regulation shall be as it exists and has been published as of July 1, 2014.

9VAC25-110-20. Purpose; delegation of authority; effective date of permit.

A. This general permit regulation governs domestic sewage discharges to surface waters from treatment works with a design discharge flow of less than or equal to 1,000 gallons per day on a monthly average.

B. The Director of the Department of Environmental Quality, or his designee, may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

C. This general VPDES permit will become effective on August 2, 2011 2016, and it expires on August 1, 2016 2021. With respect to a particular facility dwelling, building, or site served, this general permit shall become effective upon the facility dwelling, building, or site served owner's compliance with the provisions of 9VAC25-110-60.

9VAC25-110-60. Authorization to discharge.

A. Any owner of a treatment works governed by this general permit is hereby authorized to discharge treated domestic sewage to surface waters of the Commonwealth of Virginia provided that:

1. The owner submits a registration statement, if required to do so, in accordance with 9VAC25-110-70, and that registration statement is accepted by the board. For an individual single family dwelling, the owner may submit a combined application in place of a registration statement;

2. The owner complies with the effluent limitations and other requirements of 9VAC25-110-80; and

3. The board has not notified the owner, in accordance with subsection B of this section, that the discharge is not eligible for coverage under this permit.

B. The board will notify an owner that the discharge is not eligible for coverage under this permit in the event of any of the following:

1. The owner is required to obtain an individual VPDES permit in accordance with 9VAC25-31-170 B 3 of the VPDES Permit Regulation;

2. The owner is proposing to discharge to surface waters specifically named in other board regulations that prohibit such discharges;

3. The owner is proposing to discharge to surface waters in an area where there are central sewage facilities reasonably available, as determined by the board;

4. The owner of any proposed treatment works or any treatment works that has not previously been issued a VPDES permit has applied to the Virginia Department of Health for an onsite sewage disposal system permit, and the Virginia Department of Health has determined that an onsite system is available to serve that parcel of land;

5. The discharge would violate the antidegradation policy stated in 9VAC25-260-30 of the Virginia Water Quality Standards; or

6. A TMDL (board adopted, EPA approved, or EPA imposed) contains an individual WLA for the facility, unless this general permit specifically addresses the TMDL pollutant of concern and the permit limits are at least as stringent as those required by the TMDL WLA The discharge is not consistent with the assumptions and requirements of an approved TMDL.

C. Compliance with this general permit constitutes compliance, for purposes of enforcement, with the federal Clean Water Act §§ 301, 302, 306, 307, 318, 403, and 405 (a) through (b), and the State Water Control Law, and applicable regulations under either, with the exceptions stated in 9VAC25-31-60 of the VPDES Permit Regulation. Approval for coverage under this general VPDES permit does not relieve any owner of the responsibility to comply with any other applicable federal, state or local statute, ordinance or regulation, including, for owners of sewage treatment works that serve individual single family dwellings, the Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings (12VAC5-640) of the Virginia Department of Health adopted pursuant to §§ 32.1-12, 32.1-163, and 32.1-164 of the Code of Virginia and, for owners of sewage treatment works that serve nonsingle buildings or dwellings other than individual single family dwellings, the Sewage Collection and Treatment Regulations (9VAC25-790) adopted by the State Water Control Board pursuant to § 62.1-44.18 62.1-44.19 of the Code of Virginia.

D. Continuation of permit coverage.

1. Any owner that was authorized to discharge under the domestic sewage discharges general permit issued in 2006, 2011 and who is required to and submits a complete registration statement, or for an individual single family dwelling a combined application, on or before August 1, 2011 2016, is authorized to continue to discharge treated domestic sewage under the terms of the 2006 2011 general permit until such time as the board either:

a. Issues coverage to the owner under this general permit; or

b. Notifies the owner that the discharge is not eligible for coverage under this general permit is denied.

2. When the owner that was covered under the expiring or expired general permit has violated or is violating the conditions of that permit, the board may choose to do any or all of the following:

a. Initiate enforcement action based upon the 2011 general permit which has been continued;

b. Issue a notice of intent to deny coverage under the new reissued general permit. If the general permit coverage is denied, the owner would then be required to cease the activities discharges authorized by the administratively continued coverage under the terms of the 2011 general permit or be subject to enforcement action for operating without a permit;

c. Issue an individual permit with appropriate conditions; or

d. Take other actions authorized by the VPDES Permit Regulation (9VAC25-31).

9VAC25-110-70. Registration statement.

A. Deadlines for submitting registration statement. Any owner seeking coverage under this general permit, and who is required to submit a registration statement, shall submit a complete General general VPDES Permit Registration Statement permit registration statement in accordance with this chapter section, which shall serve as a notice of intent to be covered for coverage under the general General VPDES permit Permit for domestic sewage discharges Domestic Sewage Discharges of less than Less Than or equal Equal to 1,000 gallons per day Gallons per Day. For an individual single family dwelling, the owner may submit a combined application in place of the registration statement.

1. New facilities treatment works. Any owner proposing a new discharge shall submit a complete registration statement, or for an individual single family dwelling a combined application, to the department at least 60 days prior to the date planned for commencing operation of the treatment works.

2. Existing facilities treatment works.

a. Any owner of an existing treatment works covered by an individual VPDES permit who is proposing to be covered by this general permit shall notify the department and submit a complete registration statement, or for an individual single family dwelling a combined application, at least 240 days prior to the expiration date of the individual VPDES permit.

b. Any owner of a treatment works that was authorized to discharge under the general permit issued in 2006 2011, and who intends to continue coverage under this general permit, is automatically covered by this general permit and is not required to submit a registration statement, or for an individual single family dwelling a combined application, if:

(1) The ownership of the treatment works has not changed since the registration statement or combined application for coverage under the 2006 2011 general permit was submitted, or, if the ownership has changed, (i) a new registration statement or combined application or (ii) VPDES Change of Ownership form was submitted to the department by the new owner at the time of the title transfer;

(2) There has been no change in the design or operation, or both, of the treatment works since the registration statement or combined application for coverage under the 2006 2011 general permit was submitted;

(3) For treatment works serving individual single family dwellings, the Virginia Department of Health VDH has no objection to the automatic permit coverage renewal for this treatment works based on system performance issues, enforcement issues, or other issues sufficient to the board. If the Virginia Department of Health VDH objects to the automatic renewal for this treatment works, the owner will be notified by the board in writing; and

(4) For treatment works serving nonsingle buildings or dwellings other than individual single family dwellings, the board has no objection to the automatic permit coverage renewal for this treatment works based on system performance issues, or enforcement issues, or other issues sufficient to the board. If the board objects to the automatic renewal for this treatment works, the owner will be notified by the board in writing.

c. Any owner that of a treatment works that was authorized to discharge under the general permit issued in 2011 that does not qualify for automatic permit coverage renewal shall submit a complete registration statement, or for an individual single family dwelling a combined application, to the department on or before June 2, 2011 2016.

3. Late notifications registration statements. Late registration Registration statements will be accepted by the board, or for individual single family dwellings combined applications, for existing treatment works covered under subdivision 2 b of this subsection will be accepted after August 1, 2016, but authorization to discharge will not be retroactive. Owners described in subdivision 2 b of this subsection that submit registration statements or combined applications after June 2, 2016, are authorized to discharge under the provisions of 9VAC25-110-60 D if a complete registration statement, or combined application, is submitted before August 2, 2016.

B. Registration statement. The registration statement shall contain the following information:

1. a. Indicate if the facility building served by the treatment works is a an individual single family dwelling. If the facility building is not a an individual single family dwelling, describe the facility's use of the building or site served.

b. Name and street address of the facility building or site served by the treatment works.

2. a. Name, mailing address, email address (where available), and work and home telephone numbers number of the facility owner of the treatment works. For a dwelling, indicate Indicate if the owner is or will be the occupant of the dwelling or building served by the treatment works.

b. If the owner is not or will not be the occupant of the dwelling or building, provide an alternate contact name, mailing address, email address (where available), and telephone number of the dwelling or building, if available.

3. Name of the water body receiving the discharge. Indicate if the discharge point is on a stream that usually flows during dry weather.

4. The amount of discharge from the treatment works, in gallons per day, on a monthly average, and the design flow of the treatment works, in gallons per day.

5. A description of any pollutants, other than domestic sewage, to be discharged.

6. For a proposed treatment works, indicate if there are central sewage facilities available to serve the facility building or site.

7. If the facility treatment works currently has a VPDES permit, provide the permit number. Indicate if the facility treatment works has been built and begun discharging.

8. For the owner of any proposed treatment works or any treatment works that has not previously been issued a VPDES permit:

a. A 7.5 minute USGS U.S. Geological Survey (USGS) topographic map or equivalent (e.g., a computer generated map) that indicates the discharge point, the location of the property to be served by the treatment works, and the location of any wells, springs, other water bodies, and any residences within 1/2 mile downstream from the discharge point;

b. A site diagram of the existing or proposed sewage treatment works; to include the property boundaries, the location of the facility or dwelling to be , building, or site served, the individual sewage treatment units, the receiving water body, and the discharge line location; and

c. A copy of the notification from the Virginia Department of Health that an onsite sewage disposal system permit has been applied for and that the Virginia Department of Health has determined that there is no onsite system available to serve that parcel of land.

9. Maintenance contract Operation and maintenance.

a. For the owner of a treatment works serving an individual single family dwelling, indicate if a valid operation and maintenance contract has been obtained in accordance with the requirements are specified in VDH regulations at 12VAC5-640-500, or if an variance to the maintenance contract requirement has been requested and granted by the Virginia Department of Health. Provide the name of the individual or company contracted to perform the treatment works maintenance and the expiration date of the current contract, if applicable. If the treatment works has not been constructed yet, provide the name after construction is complete and prior to starting the treatment plant operation.

Indicate if a monitoring contract has been obtained in accordance with the requirements in 12VAC5-640-490 F, or if the monitoring contract requirement has been waived by the Virginia Department of Health, or if the monitoring requirements are included as part of the maintenance contract. Provide the name of the individual or company contracted to perform the treatment works monitoring and the expiration date of the current contract, if applicable. If the treatment works has not been constructed yet, provide the name after construction is complete and prior to starting the treatment plant operation;

b. For the owner of a treatment works serving a nonsingle building or dwelling other than an individual single family dwelling, indicate if a valid maintenance contract has been obtained, or if an exception to the maintenance contract requirement has been requested and granted in accordance with subdivision 10 of this subsection. Provide the name of the individual or company contracted to perform the treatment works maintenance and the expiration date of the current contract, if applicable. If the treatment works has not been constructed yet, provide the name after the certificate to construct (CTC) is issued, and prior to requesting a certificate to operate (CTO). A valid maintenance contract shall provide for the following:

(1) Performance of all testing required in accordance with either 9VAC25-110-80 Part I A or Part I B, as appropriate, and periodic (at least annual) inspections of the treatment works. Note: The treatment works should be sampled during normal discharging operations or normal discharging conditions (i.e., operations that are normal for that facility). The owner or maintenance provider should not force a discharge in order to collect a sample;

(2) A written notification to the owner within 24 hours whenever the contract provider becomes aware that maintenance or repair of the owner's treatment works is necessary. The owner is responsible for prompt maintenance and repair of the treatment works including all costs associated with the maintenance or repair. Immediately upon receipt of notice that repair or maintenance is required, the owner shall begin emergency pump and haul of all sewage generated from the facility or dwelling if full and complete repairs cannot be accomplished within 48 hours.

(3) A log of the following items shall be maintained by the contract provider for as long as the contract is in force:

(a) Results of all tests and sampling. Note: If sampling is attempted, but no sample was taken or possible, the log shall show all sampling attempts, and document and explain why no sample was taken or possible;

(b) Alarm activation incidents;

(c) Maintenance, corrective, or repair activities performed;

(d) Recommended repair or replacement items; and

(e) Copies of all reports prepared by the contract provider.

(4) An inspection shall be conducted by the contract provider within 48 hours after notification by the owner that a problem may be occurring; and

(5) The maintenance contract shall be kept in force during the entire permit term, and shall be valid for a minimum of 24 months of consecutive coverage.

10. The owner of a treatment works serving a nonsingle building or dwelling other than an individual single family dwelling may request an exception to the maintenance contract requirement by submitting an operation and maintenance plan to the board for review and approval. If an operation and maintenance plan has been approved by the board previously and remains current and complete, then it does not need to be resubmitted. In such cases, the owner shall provide the date of approval of the operation and maintenance plan, and identify any changes that have been made to the approved plan. At a minimum, the operation and maintenance plan shall contain the following information:

a. An up-to-date operation and maintenance manual for the treatment works;

b. A log of all maintenance performed on the treatment works including, but not limited to, the following:

(1) The date and amount of disinfection chemicals added to the chlorinator.

(2) If dechlorination is used, the date and amount of any dechlorination chemicals that are added.

(3) The date and time of equipment failure(s) and the date and time the equipment was restored to service.

(4) The date and approximate volume of sludge removed.

(5) Results of all tests and sampling. Note: If sampling is attempted, but no sample was taken or possible, the log shall show all sampling attempts, and document and explain why no sample was taken or possible;

c. Dated receipts for chemicals purchased, equipment purchased, and maintenance performed; and

d. An effluent monitoring plan to conform with the requirements of 9VAC25-110-80 Part I A or Part I B, as appropriate, including all sample collection, preservation, and analysis procedures. Note: The treatment works should be sampled during normal discharging operations or normal discharging conditions (i.e., operations that are normal for that facility). The owner or maintenance provider should not force a discharge in order to collect a sample.

11. The following certification: "I hereby grant to duly authorized agents of the Department of Environmental Quality, upon presentation of credentials, permission to enter the property where the treatment works is located for the purpose of determining compliance with or the suitability of coverage under the General Permit. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations."

C. The registration statement shall be signed in accordance with the requirements of 9VAC25-31-110 A of the VPDES Permit Regulation.

D. The registration statement may be delivered to the department by either postal or electronic mail and shall be submitted to the DEQ regional office serving the area where the treatment works is located.

9VAC25-110-80. General permit.

Any owner whose registration statement is accepted by the board, or whose permit coverage is automatically renewed, shall comply with the requirements contained herein and be subject to all requirements of 9VAC25-31-170.

General Permit No.: VAG40
Effective Date: August 2, 2011 2016
Expiration Date: August 1, 2016 2021

GENERAL PERMIT FOR DOMESTIC SEWAGE DISCHARGES OF LESS THAN OR EQUAL TO 1,000 GALLONS PER DAY

AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW

In compliance with the provisions of the Clean Water Act (33 USC § 1251 et seq.), as amended, and pursuant to the State Water Control Law and regulations adopted pursuant thereto, owners of treatment works with domestic sewage discharges of a design flow of less than or equal to 1,000 gallons per day on a monthly average are authorized to discharge to surface waters within the boundaries of the Commonwealth of Virginia, except those waters specifically named in board regulations that prohibit such discharges.

The authorized discharge shall be in accordance with this cover page, Part I-Effluent Limitations, Monitoring Requirements and Special Conditions, and Part II-Conditions Applicable to All VPDES Permits, as set forth herein.

Part I
Effluent Limitations, Monitoring Requirements and Special Conditions

A. Effluent limitations and monitoring requirements—receiving waters where the 7Q10 flows are less than 0.2 MGD.

1. During the period beginning with the permit's effective date and lasting until the permit's expiration date, the permittee is authorized to discharge from outfall number 001 to receiving waters where the 7Q10 flows are less than 0.2 MGD.

The discharge shall be limited and monitored by the permittee as specified below: