10.9.23: Article first published.
11.1.23: Article updated to include FCPS staff's internal emails about how they made a decision to deny payment of an IEE in full at public expense. (See Lowballing Rates section below)
For at least sixteen years, Virginia Department of Education (VDOE) failed to ensure compliance with Individuals with Disabilities Education Act (IDEA) and implementing Virginia regulations.
In 2007, Fairfax County Public Schools (FCPS) refused to fund Independent Educational Evaluations (IEE) at public expense and refused to file due process to defend its refusals to fully fund IEEs at public expense. FCPS parents filed a state complaint and, in 2008, VDOE found FCPS at fault for failure to comply with IDEA and implementing Virginia regulations regarding IEEs.
During the subsequent 16 years, the same noncompliance continued in FCPS and other Virginia local education agencies (LEAs).
In 2022, VDOE found Loudoun County Public Schools (LCPS) at fault for systemic noncompliance regarding IEEs. Less than two years later, July 14, 2023, VDOE again found LCPS in noncompliance regarding IEEs. Both of these LCPS findings echo VDOE's 2008 findings against FCPS.
In a bit of irony, in its July 14, 2023, Letter of Findings (LOF) against LCPS, VDOE states that VDOE itself is not at fault for failures regarding its general supervisory duties. And yet . . . In all three cases, VDOE reactively made the findings in response to state complaints filed over a period of 16 years, rather than proactively ensuring compliance as part of its general supervisory duties.
What are IEEs?
Pursuant to Sec. 300.502(3)(i) of IDEA, an IEE is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" and is provided at public expense.
Parents of a child who has a disability have the right to obtain an IEE at public expense if the parents disagree with an evaluation administered by the public agency. "Public expense," as defined by Sec. 300.502(3)(ii), "means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.103."
After a parent requests an IEE, the "public agency must, without unnecessary delay, either—(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria."
A school division administers a psychological evaluation and an educational evaluation of your student and states that together, those two evaluations equate to a comprehensive initial evaluation.
You disagree with the division's evaluation and request an IEE that includes psychological, educational, speech-language, auditory processing, and visual processing evaluations.
The school district has the following two choices:
1. It can refuse your request and file for due process to defend its refusal.
2. It can approve your request and pay for the evaluation at public expense.
If the school goes with #2, it cannot narrow the scope of the IEE to a one-to-one model. It must approve all the evaluations requested—even if it didn't previously do those evaluations itself—or file for due process to defend its decision. Ultimately, when the school decided to evaluate your student, it had the choice to provide different evaluations as a part of the larger comprehensive initial evaluation. Its choice to limit the overall scope to psychological and educational evaluations can't limit the scope of IEEs in the future.
In addition, if a parent requests an IEE with three specific evaluations, the school division can't deny a later request to add two more evaluations to the IEE. It might be that data collected from the first three led to the need for the second two. For example, upon completion of an IEE, a neuropsychologist might suggest a vision processing evaluation because his own evaluation led him to believe the student has convergence insufficiency issues.
U.S. Department of Education and IEE Noncompliance vs Compliance
June 23, 2020, USDOE found Virginia at fault for the "component" issue, because Virginia dictated that IEEs were limited to the components of the evaluations done by the school. For example, if the school did a psychological and education evaluation, the IEE would be limited to a psychological and education evaluation. In its Differentiated Monitoring and Support findings, USDOE stated the following:
"The provisions in Virginia Administrative Code 8VAC20-81-170(B)(2)(a) and (e), as interpreted by the State and implemented by its LEAs, are inconsistent with the language and intent of 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502(b), which do not limit a parent’s right to an IEE at public expense to circumstances where the parents disagree with the results of a specific evaluation component already conducted by the public agency.
"When presented with inquiries from individuals about the scope of a parent’s right to an IEE at public expense, since 1995, OSEP has consistently taken the position that a parent’s right to an IEE at public expense is not limited to those assessments that were part of the public agency’s evaluation. OSEP’s interpretation is supported by the plain language of the statute and regulation, which do not restrict a parent’s right to an IEE at public expense to those assessments previously conducted by the public agency. See OSEP Letter to Fisher (1995); OSEP Letter to Baus (2015), available at: https://sites.ed.gov/idea/idea-files/policy-letter-february-23-2015-todebbie-baus/; and OSEP Letter to Carroll (2016), available at: https://sites.ed.gov/idea/ideafiles/policy-letter-october-22-2016-to-jennifer-carroll/. That is, disagreement over the evaluation conducted by an LEA includes a disagreement about the appropriate scope of the assessment, such as when an LEA fails to assess suspected areas of a child’s educational needs simply because of shortages of evaluation personnel. In addition, OSEP has explained that a parent’s right to an IEE is not contingent upon the public agency being first afforded an opportunity to conduct an assessment in an area that was not part of the initial evaluation or reevaluation. See OSEP Letter to Thorne (1990) and OSEP letter to Carroll (2016)."
In addition, USDOE's findings reiterated the following:
"If a parent requests an IEE at public expense, the public agency must, without unnecessary delay, either:
"1. Initiate due process procedures under 34 C.F.R. §§ 300.507 through 300.513 to show that its evaluation is appropriate; or
"2. Ensure that an IEE is provided at public expense, unless the agency demonstrates in a hearing under 34 C.F.R. §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502."
What Noncompliance Led to the 2007 State Complaint Against FCPS?
In the 2007 case, the parents of a student who has a disability requested an IEE after FCPS evaluated their student. FCPS did not file for due process to defend the appropriateness of its own IEE. Instead, FCPS approved the IEE and the IEE provider. When the IEE exceeded FCPS' cap for IEE fees by $100, FCPS refused to reimburse the parents the $100 overage, and refused to file for due process to defend its choice to refuse payment of the $100 overage, even though the parents demonstrated unique circumstances justifying the $100 overage.
The parents filed a state complaint.
Rather than defend its refusal or pay the $100 overage, FCPS chose to spend more than $100 to fight the state complaint.
VDOE issued its Letter of Findings (LOF) January 14, 2008, and found FCPS in noncompliance.
In the analysis and findings section of its LOF, VDOE states:
"Although a school division may, in an attempt to avoid unreasonable cost for IEEs, establish a cap on the allowable charges for such evaluations, the school division must allow the parents an opportunity to demonstrate that unique circumstances existed that warranted an IEE that did not meet the school division's criteria. Should the school division believe that there is no justification for the excess case; the school division cannot in its sole judgement determine that it will pay only the maximum allowable cost and no further. The school division must, without unnecessary delay, initiate a due process hearing to demonstrate that the evaluation obtained by the parent did not meet the agency's criteria and that there were no unique circumstances that would have justified a rate than normally allowed. Letter to Anonymous, 103 LRP 22731 (OSEP 2002). If the school division chooses not to initiate a due process hearing, then the school division must ensure that the parent is reimbursed for the full cost of the IEE. Letter to Parker, 41 IDELR 155 (OSEP 2004).
"FCPS' demonstration that speech/language IEEs which meet their criteria have been obtained by other individuals within the school division is insufficient to find that FCPS satisfied compliance in this instance. The record supports that the [PARENTS] attempted to locate an evaluator that would provide an IEE within the criteria established by FCPS. However, when this proved unsuccessful they chose a provider, Skill Builders, LLC, from the list provided by FCPS.
"FCPS actions in preparing a list of names and addresses of evaluators that meet their established criteria, including costs limitations, is consistent with the requirements of applicable state and federal special education regulations. However, in this case, the [PARENTS] submitted documentation to support that there were mitigating circumstances in finding an evaluator that could provide all of the speech and language assessments that they considered were necessary to ensure a comprehensive evaluation of their son, at the cost specified by FCPS. At that point, as required by the regulations stated above, and reinforced through OSEP memorandums, FCPS incurred an obligation of initiating due process to contest the excess cost or reimbursing the [PARENTS] for the full costs which they incurred in obtaining a speech/language IEE.
"Our review of the record reflected that FCPS did not initiate a due process hearing to demonstrate that the IEE did not meet their criteria or that there were no unique circumstances that warranted the excess cost and refused to reimburse the [PARENTS] for the full cost of the IEE that obtained from Skill Builders."
VDOE's LOF provided FCPS until February 14, 2008, to "accomplish" the following corrective actions:
"1. Prepare and disseminate an instructional memorandum to the personnel FCPS deems appropriate to address requirements of the federal and state special education laws outlines above as a remind of the procedures that must be followed to ensure that independent educational evaluations (ISSs) are provided at public expense or how the school division my [sic] challenge the IEE through a due process hearing.
"2. Reimburse the [PARENTS] for the full cost of the IEE they obtained from Skill Builders, LLC.
"Please submit documentation that these corrective actions have been taken to our office by February 14, 2008.
"FCPS is asked to please maintain documentation of the actions taken required in this Corrective Action Plan (CAP), as this information may be requested during our CAP implementation follow-up process on a later date."
What Happened Between 2007 and 2023?
Refusing Components, Refusing to Pay in Full, and Refusing to Defend Its Decisions
Between 2007 and 2023, FCPS approved IEE requests, but refused "components" that were not part of its original evaluation and/or refused to pay IEEs in full at public expense.
After USDOE's June 23, 2020, DMS findings were released. I sent FCPS the findings and it confirmed receipt, but FCPS continued to refuse evaluations that weren't components of its prior evaluations. FCPS' excuse? FCPS stated VDOE didn't provide any guidance to FCPS, hence it would continue along the same path. On at least two more occasions—July 6 and August 13—FCPS issued two more IEE denials. FCPS did not file for due process to defend its denials.
January 25, 2021—seven months after USDOE found Virginia in noncompliance and almost four months after VDOE found FCPS in noncompliance—FCPS provided training to its staff about "changes" regarding IEEs. However, FCPS presented the information as if the federal regulations had changed, rather than that the changes were in response to FCPS and VDOE being found in noncompliance of IDEA. The following provides a partial transcript from the online training presentation and from the online chat that occurred during the training.
Partial Transcript of January 25, 2021, FCPS Training
Rory Duffield (starting at about the 1:23:28 point of the meeting):
"I’m one of the on one the specialists in the office of due process and eligibility. And we’ve been asked to kind of give you guys a little bit of an update regarding individual education, evaluations or IEEs.
"This particular summer, the super superintendent's memo went out, as you can see [inaudible] to all school divisions explaining some clarification. The federal guidelines regarding IEE requests and with regards to parent’s rights, specifically as you can kind of read through this slide is that parents can now ask for an IEE in an area in which their child was not previously assessed.
"So, for example, if a child during reevaluation or initial eligibility only had a psychological, social-cultural, and an educational evaluation, the parent could also then in an IEE request a speech and language. Prior to us realizing or finding this out, it used to be one-for-one, but we are now realizing that we cannot limit the parents to that. So that’s what came out and that superintendent’s memo.
"So what that exactly means to us as a school team before I move on to the next slide, and there are two takeaways that we would like for you guys to understand from this new guidance we have received. Specifically, because parents can now request an IEE in an area not evaluated, that there may now be some eligibility meetings or IEP meetings or whatever the case is where we have to consider a a private evaluation in which we do not have an FCPS equivalent evaluation. And that can also affect different areas of eligibility that we did not initially consider when we’re going through eligibility.
"So for example, for parent requests of speech and language evaluation, and it had never been done before, and we never had any concerns of that, the parent for some reason does, then we have to consider that and we would have to look at that private evaluation with good eagle eyes and looking through the those evaluation. So . . .
"We made this, we are definitely starting to see some new evaluations being requested from parents. So that is becoming a little bit of a hot topic and that’s the reason why we wanted to bring it to your attention here today. So, just keep that in mind as we move forward. It’s no part in terms of the school team, not necessarily doing a good job with considering or doing a fully comprehensive evaluation, but just happening.
"I see a question in the chat, if there’s a private assessment does FCPS have to do an equivalent evaluation, like if they do request an IEE speech, whether they would then do an FCPS speech evaluation. It would be nice to do that, Erin, if we have the opportunity to. The key factor that we sometimes run into with that is that we don’t want to duplicate the same exact testing that was done in the private, because then it doesn’t make the results necessarily valid, so we might do some supplemental testing potentially, to get some additional information just so we can kind of have something on our end. But that’s not always gonna be the case where we have the opportunity because the parent may not give us consent to do that evaluation. So of course, it’s contingent upon that."
Partial Chat for 1.25.21 FCPS Special Education Lead Teacher Meeting
Erin VanAllan, special ed teacher:
"If there is a private assessment, does FCPS have to do an equivalent evaluation? Like if they do request an IEE for speech should we then do an FCPS speech eval?"
Lourrie Duddridge, Due Process and Eligibility:
"It is not REQUIRED that FCPS conduct an evaluation."
In 2019, twelve years after filing the IEE state complaint against FCPS, the 2007 parents again found themselves in the same situation, but this time with their youngest child. The 2007 parents requested an IEE, FCPS refused to fully fund the IEE at public expense—even though the parent again demonstrated unique circumstances that warranted to overage fee—and FCPS refused to pay the overage and to file for due process to defend its refusal to pay the overage fee.
September 9, 2019:
Dawn Schaefer emailed Jane Strong:
“We expected [Parent] to choose Mindwell based on her chatter on social media and with us. I’m wondering if you’d like us to grant the full cost at Mindwell or hold the line at $2400. This evaluation would not be above and beyond the evaluations done by other evaluators for our established rate of $2400.”
September 10, 2019:
Dawn Schaefer emailed Jane Strong:
“We just poured over our data since 2017, and we have very rarely had evaluators seek additional payment from us. Mindwell has been charging $3600-4000 for psychoeducational evaluations since at least 2017. [Parent] has received all of the documentation regarding our fee setting via FOIA. Lourrie is going to respond to her in the morning and ask what her data is to say the customary cost is $3800.”
Jane Strong emailed Dawn Schaefer:
“Have we paid mindwell that high a fee in the past?”
Dawn Schaefer emailed Jane Strong:
“Yes, prior to us resetting our fee schedule in May 2017.”
September 11, 2019:
Lourrie Duddridge emailed on of the 2007 parents:
"You have stated that the cost estimate of $2800-3800 for the psychoeducational at MindWell and $650 for the speech and language evaluation at Skill Builders is reflective of the usual and customary costs for psychoeducational and speech and language evaluations in our area. Please provide us with the documentation related to your position so that we may consider it.
The 2007 parents filed a FOIA request related to FCPS' IEE rates and how they're established. (See "FOIA: Fairfax County Public Schools Independent Educational Evaluations") Although the 2007 parents paid $500 for a speech language evaluation in 2007, it wasn't until almost ten years later, in 2017, that FCPS determined $500 to be the appropriate cap for this evaluation. Yet, the data in FCPS's FOIA response indicates FCPS' 2017 fiscal-year-to-date average for speech language evaluations already exceeded $500, coming in at an average of $512.50. Hence, FCPS was setting a cap below its own average—and basing its cap on what it had paid out previously, rather than actual market rates. Although inflation increased in the region, and although FCPS's own rate change documentations showed an increase in rates just between 2015 and 2017, FCPS kept its 2017 rates in place through 2022.
September 26, 2019:
Lourrie Duddridge responded to another staff member about the IEE-related FOIA submitted by the parent and admitted FCPS' 2019 rates were out of date:
"We did no research in terms of usual and customary costs for the 18 - 19 school year."
FCPS knew its rates were outdated and that it had paid the same Mindwell provider the same amount at least two years prior, but chose to refuse the parent's request and failed to file for due process to defend its decision. Twelve years earlier, FCPS took the same action against the same parent. Back then, VDOE found against FCPS. But, 12 years later? Nope.
Around the same time, I was trying to obtain an IEE and contacted numerous providers in the area. Their rates were above FCPS' IEE fee cap or their evaluations were tailored for FCPS' pricing, hence they weren't comprehensive. I continued to send the information I obtained to Jen Krempasky to make her aware of the current pricing. She ignored the data provided to her.
September 29, 2019:
"Her berating of Jen over IEE rates is becoming ridiculous, and is simply further fodder for the VDOE complaint and/or OCR complaint she's getting ready to file over IEEs.
"I'd like to shut this down but I know no matter what we do it won't end. She's advising multiple families so paying for whatever evaluation she wants won't do any good either."
Dawn's comments indicate that she made a decision related provision of an IEE to one of my kids based on me talking to other families, rather than on the need of my child. In addition, I wasn't "berating" Jen. I was pointing out all the data collected, which showed FCPS' rates to be out of date—something Lourrie Duddridge advised another staff member three days prior.
However, I did file a state complaint in 2022—and won.
October 2, 2020, after VDOE made FCPS aware of its findings, Dawn Schaefer expressed an interest in appealing the decision, for reasons other than being in compliance with IDEA and implementing state regulations.
October 2, 2020
Dawn Schaefer to John Cafferky, Wesley Allen, Robert Falconi, and Michelle Boyd:
"FYI—I think we need to appeal the finding regarding IEEs. VDOE has not changed their
regulation yet, and they are essentially telling us we have to implement OSEP’s opinion-- that
they are apparently appealing themselves. It makes no sense.
"I’ll stand down if others think we should just pay for the IEE. Just know this finding has far
reaching consequences. This parent is very well-connected and has her own advocacy
Refusal to Defend Its Decisions
Even though FCPS continued to refuse "components" and refused to pay IEE "overage" fees between 2007 and 2023, FCPS refused to file for due process to defend its denials.
VDOE's own website is notable for the lack of due process hearings filed by LEA's statewide to defend their IEE-related refusals. VDOE knew parents were being denied IEE "components", that LEAs were refusing fee overages, and that LEAs were not filing for due process to defend their decisions.
Same Noncompliance, Different Year
Although FCPS IEE rates changed between 2007 and 2023, the noncompliance didn't.
Parents in FCPS and other counties continued to make VDOE aware that the exact same noncompliance was occurring throughout the state, yet VDOE failed to stop it from occurring, to the point of ignoring the exact same allegations in subsequent state complaints.
For example, in 2020, VDOE was made aware of a $600 overage fee for an IEE. Just as with the 2008 case that took place over a decade earlier, FCPS approved the IEE request instead of filing for due process to demonstrate its evaluation was appropriate, and then refused to pay for an IEE it approved in full, even though it was provided valid reasons for the overage.
In the 2020 case, the evaluator provided two reports: "Report of Independent Educational Evaluations" and "Report of Neuropsychological Evaluations". FCPS stated that the IEE report met its criteria, thus it wouldn't reimburse the parent for the $600 paid for the additional testing administered by the evaluator for the Neuropsychological report, even though the latter identified more deficits and areas of need for the student.
Although FCPS continued to refuse reimbursement of the $600, between 2020 and 2023, FCPS staff quoted from the Neuropsychological report during IEP meetings and the report was listed in subsequent Prior Written Notices (PWNs).
From Noncompliance to Quid Pro Quo
Early 2023—three years after the 2020 parent requested reimbursement and 15 years after VDOE's 2008 finding of noncompliance—FCPS met with the 2020 parent to discuss Office for Civil Rights (OCR) resolution agreement and findings against FCPS. November 2022, OCR found FCPS in noncompliance with IDEA between April 2020 and June 2022, and required FCPS to meet with families impacted, to include the 2020 parent.
FCPS's OCR resolution-related proposal includes a $600 reimbursement for the 2020 overage. In associated documentation, FCPS stated the $600 reimbursement is being proposed because the $600 represented an IEE "overage" fee. These statements equate to an acknowledgement from FCPS that it knew it should have reimbursed the parent in 2020.
However, FCPS tied the $600 payment to the parent signing off on FCPS's OCR-related proposal.
Hence, rather than paying the $600 at public expense pursuant to IDEA and implementing state regulations, FCPS has established a quid pro quo condition: Either the parent signs off on an FCPS proposal that the parent considers deficient and rooted in discrimination and retaliation, or the parent won't receive the $600 payment.
October 4, 2023, in response to a state complaint filed by the 2020 parent, FCPS falsely claimed that the parent never requested reimbursement for the $600 prior to 2023.
Continued Noncompliance: FCPS and Beyond
Unfortunately, the 2007 and 2020 parents aren't the only examples of FCPS's noncompliance continuing.
VDOE failed to make findings in subsequent state complaints, even though it knew the noncompliance continued.
As stated above, VDOE found LCPS in noncompliance regarding IEEs in 2022, but less than two years later, it took a lawyer filing another state complaint to get VDOE addressing LCPS's continued IEE noncompliance.
Significantly: VDOE backtracked on an earlier decision, stating it didn't have a complete picture. Yet, in other complaints, VDOE has refused to take the same track, instead attempting to invoke res judicata and say that a decision had already been made.
It would be easy to assume that VDOE's IEE backtracking and 2023 finding against LCPS were made because they corresponded with USDOE's recent onsite, and the fact that IEEs have been an area USDOE has been investigating since 2020. Either way, it shows VDOE has the ability to follow IDEA when it chooses—and that it has the ability to backtrack on previous decisions after being provided new information. Whether VDOE will continue to do so remains to be determined.