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'It feels sneaky': Virginia lawmakers allocated $6.5 million to adult special education students - but disability advocates say there's a loophole

'It feels sneaky': Virginia lawmakers allocated $6.5 million to adult special education students - but disability advocates say there's a loophole

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COVID leads to a lost year for student with autism. He wants it back

Virtual school was tough for T.Q. Jackson, an autistic 21-year-old from Prince Edward County, about an hour southwest of Richmond. He normally attends school at the Faison Center in Richmond, which specializes in working with students with autism to get an education better suited for their needs than public school can provide. His grandmother, Catherine Smith, says he basically lost an entire year of learning during the pandemic.

“It was hard because he won’t get on the computer, he don’t like that. He don’t do all that,” she said of virtual school. But school officials at Faison, she said, were most helpful in keeping Jackson engaged. “They called him and talked to him every day on the phone.”

For many students with disabilities, specialized programs such as the Faison Center provide life skills and socialization desperately needed — especially as they transition into adulthood. At the Faison Center, in addition to his academics, Jackson was able to learn to cook, and he was also part of an employment academy, where students can typically get internships and learn life skills that they often can’t learn in public school.

So Smith was ecstatic when she learned the Virginia legislature passed a budget amendment in its 2021 special session that allocated $6.5 million for an additional year of education for students like her grandson who had aged out at 21.

Smith thought the additional dollars meant Jackson would be able to complete another year at the Faison Center, where he’d been for four years, and her meetings with her grandson’s Individual Education Plan team in Prince Edward suggested the same, she said. But that changed around May, Smith said, after state Superintendent of Public Instruction James Lane sent a memo to the state’s 132 school district superintendents pointing them to a discrepancy between state funding and federal law.

“This initiative is temporary, and is not associated with any provision of the IDEA or the Regulations Governing Special Education Programs for Children with Disabilities in Virginia because the student has reached the maximum age of eligibility,” Lane wrote in the memo. “Therefore, the requirements of a free appropriate public education (FAPE) are not applicable.”

Some disability advocates say that memo points school districts to a kind of loophole between state money allocated for these students and federal law that says they’re not covered after age 21.

“Parents are confused as to why the regulations wouldn’t apply in school districts,” said Todd Ratner, a lawyer who focuses on special education law and often challenges the VDOE when it comes to students with disabilities. “[The VDOE] seems to be going out of their way to say that the regulations don’t apply.”

Prior to 1975 and federal passage of the Education for All Handicapped Children Act, there was no legal framework to ensure that students with disabilities received the same quality of education as other students. In that law, a free and appropriate education was required for all students, including those with disabilities.

In 1990, the law’s name changed to the Individuals with Disabilities Education Act, which is now colloquially known as the IDEA, which gives students access to a free and appropriate public education until they turn 21.

Often specialized centers, such as Faison, are the best or only way for students to get that education, which is decided during the IEP process — and it’s up to the localities to foot the bill, at least until the students turn 21.

So while Virginia lawmakers allocated $6.5 million for the roughly 600 Virginia students over 21 to continue their education for an additional year, those students were no longer entitled to a Free and Appropriate Education under federal law.

That meant that Prince Edward would be within its legal rights to decide against paying for Jackson’s tuition to the Faison Center, which can cost twice as much as public school. And Smith said that’s what happened.

During an IEP meeting — part of the required education plan and process for students with disabilities — for Jackson between February and March, his IEP team seemed optimistic that Jackson would be able to go back to school at the Faison Center.

Then, once Lane sent out guidance that said they wouldn’t be requiring such, the thought of Jackson going back to Faison was no longer realistic, Smith said.

Instead, Smith said the school system offered Jackson a chance to learn at his local high school, but Smith fears a larger population wouldn’t be conducive for his learning.

Ruth Williamson, the coordinator for exceptional programs in Prince Edward Public Schools, declined to comment for this story. She also didn’t respond to a list of questions sent by the Richmond Times-Dispatch.

“There’s always this real concern when kids age out of school, as to what comes next,” Ratner said. “School has been the primary source of engagement during the day for kids with disabilities until they reach age 22. And then services are very different for adults.”

Smith said she worries that without an extra year of learning for Jackson following COVID, he’ll be lost in the system without a transition plan.

“That will affect him big time because we really were looking for that extra year … that would have helped him a lot,” Smith said. “Why would you take that extra year from an autistic child? [He’s] losing his routine, what he’s used to.”

Cheryl Poe, the executive director for Advocacy 4 Kids, says she doesn’t feel the VDOE has been transparent with parents on this process for students with disabilities who have aged out of eligibility.

“It feels sneaky, and it doesn’t feel like it’s done in a way of transparency,” she said.

Further, instead of offering an IEP for students who have aged out, the VDOE is hoping to offer a Post-Secondary Advancement Plan that will “outline the student’s vision for the future, strengths, and needs.”

The guidance sent to superintendents from the VDOE says that the Post-Secondary Advancement Plan is not meant to act as an extension of an IEP, nor is it a new IEP. That puzzles Ratner the most.

“We’ve got a whole framework in place that says, ‘This is what children who are eligible for special education services are entitled to.’ There’s a whole regulatory framework, right?” he said. “They should be treated just the same as every other kid who’s going to be receiving services. But for some reason VDOE has just said, ‘No. We’re going to treat them completely differently.’ ”

But, if localities wanted to offer contractual services, they could, according to a statement from VDOE spokesperson Charles Pyle.

“There is nothing in the HB77 appropriation that prohibits contractual services,” Pyle said in a statement. “The option can include a variety of services and supports, including working or contracting with a private provider.”

Still, it’s up to the locality to make that call.

“They’re trying to say they have job training, they have this and they have that. But my problem is that if they don’t have the right people in place for him, it’s not going to work,” Smith said. “It’s going to set him back.”

Jackson’s last day at the Faison Center was on June 30.


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