Fairfax County Public Schools (FCPS), Virginia, refused to update the transition plan in a student’s Individualized Education Plan (IEP). After the student’s parent filed a state complaint with the Virginia Department of Education (VDOE), VDOE issued a Letter of Findings (LOF) that found FCPS in compliance with the Individuals with Disabilities Education Act (IDEA) and faulted the parent for not requesting an updated transition plan. Among other things, the LOF states:
In reaching our finding on this Subissue, we find the following compelling:
There is no indication in the record that Parent requested revision to Student’s transition plan . . .
Pursuant to the Individuals with Disabilities Education Act (IDEA), it is the local education agency, not the parent, that is responsible for ensuring that IEPs are incompliance with IDEA.
In addition, VDOE was sent, responded to, or cc’d on emails related to transition plan issues on the following dates, so VDOE knew the parent had contacted it and FCPS about problems on numerous occasions:
- September 15, 2017
- September 4, 2019
- September 16, 2019
- April 3, 2020
- April 6, 2020
- April 7, 2020
- April 15, 2020
- May 12, 2020
- May 15, 2020
- May 19, 2020
THE BIG QUESTION
Why did VDOE find FCPS in compliance with IDEA if it is FCPS’s responsibility, not the parent’s responsibility, to ensure IEPs are in compliance with federal and state regulations?
THE FACTS
I. Federal Regulations
Regulation 300.320(b) states the following specific to transition services:
(b) Transition services. Beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP Team, and updated annually, thereafter, the IEP must include—(1) Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and (2) The transition services (including courses of study) needed to assist the child in reaching those goals.
II. State Complaint Date and Statue of Limitations
VDOE marked June 28, 2021, as its receipt date for the parent’s state complaint. Pursuant to 8VAC20-81-200(B)(6), state complaints shall:
“Address an action that occurred not more than one year prior to the date the complaint is received.”
Hence, VDOE’s complaint investigation should have addressed the transition plans in IEPs between June 28, 2020, and June 28, 2021.
III. 300.320(b)(1) and 300.320(b)(1) Goals and Services Requirements
Did the IEPs between June 28, 2020 and June 28, 2021, meet the 300.320(b)(1) and 300.320(b)(2) goals and services requirements?
No.
The transition plans did not include appropriate measurable postsecondary goals and transition services and did not come close to looking anything like FCPS’s transition plan guidance. (Read below for more on this and read FCPS’s “Transition Tool Kit for Parents“).
To date FCPS has yet to provide the parent data indicating that it did anything to measure the goals and services.
IV. 300.320(b) Transition Age Requirement
Did the IEPs between June 28, 2020, and June 28, 2021, meet the 300.320(b) age requirement?
Yes and no.
The student turned 16 in 2019 and the first transition plan appeared in an IEP dated September 7, 2017, which met the federal regulation. In Virginia, the age requirement is 14, and FCPS met that requirement.
However, the student did not have a transition plan that met the requirements of 300.329(b) or state regulations by the time he was 14 or 16. The September 7, 2017, IEP and the transition plans that followed, to include those covered within the state complaint, did not meet federal regulations. (Read below for more on this.)
V. 300.320(b) Annual Update Requirement
Was the transition plan updated annually?
No.
The following are the dates on which changes to the transition plans appeared in draft IEPs:
- 2017: September 7
- 2018: April 13
- 2019: May 3
- 2020: February 5
- 2021: No change as of May 25, when parent emailed VDOE a state complaint.
Just five changes of note occurred between the first and last dates listed above.
All other changes were a matter of changing a few words here and there. On at least four occasions, the goals went backwards.
Postsecondary Education Goal:
- 2017: “After high school, I will attend UCLA.”
- 2018: “After high school I will go to college.”
- 2019: “After high school I will try to attend UCLA.”
- 2020: No change between 2019 and 2020.
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
Postsecondary Training Goal:
- 2017: “After high school, I will train to play professional baseball.”
- 2018: “After high school, I will train to play baseball.”
- 2019: “After high school, I will continue to meet with trainers and fine tune my baseball skills. I will also look into music classes or a guitar club.”
- 2020: No change between 2019 and 2020.
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
Postsecondary Employment Goal:
- 2017: “After high school, I will work in an area of my interest”
- 2018: “After high school, I will have a job or play baseball.”
- 2019: After high school, I will consider getting a part time job to help me during college.
- 2020: No change between 2019 and 2020.
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
Postsecondary Independent Living:
- 2017: “After high school, I will ” [This was not fully answered.]
- 2018: No change between 2017 and 2018.
- 2019: “After high school, I will live in a dorm. I am not sure what I will want to do after that.”
- 2020: No change between 2019 and 2020.
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
Career Objective:
- 2017: “I will continue to play baseball and explore my other interests.”
- 2018: No change between 2017 and 2018.
- 2019: “I will get as much extra practice as I can with both my guitar and baseball skills.”
- 2020: “I will get as much extra practice as I can with both my guitar and baseball skills. I will create my resume with the Employments and Transition Representative by the end [sic] school year 2020.”
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
Self Advocacy Objective:
- 2017: “I will ask teachers for help when I need it.”
- 2018: “I will ask teachers for help with organizing my papers and projects.”
- 2019: “I will continue to communicate with my teachers about upcoming assignments, projects and assessments.
- 2020: No change between 2019 and 2020.
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
Independent Living Objective:
- 2017: “I will save money and think about summer job ideas.”
- 2018: “I will save money.”
- 2019: “I will continue doing my own laundry and learn to budget money I get from doing chores. I would also like to start practicing cooking.”
- 2020: I will get my driver’s license by the end of Summer 2020.
- 2021: No change as of May 25, 2021, when the parent emailed the state complaint to VDOE.
VI. Virginia Hearing Officer Rhonda Mitchell’s Role
Fall of 2020, Virginia Hearing Officer Rhonda Mitchell presided over a due process hearing called for at the request of the parent.
Evidence presented to Mitchell included the student’s IEPs from the past two years, as well as a draft IEP dated September 2, 2020, which was still in development when the hearing occurred.
A quick read of the September 2, 2020, is enough to identify that it was a draft and that there were issues in need of addressing. For example, verbiage within the draft IEP states that additional meetings were needed to add data from recent evaluations. In addition, a cursory glance at the transition plan reveals glaring issues related to the plan being dated, such as the 2020 Independent Living Objective having a Summer 2020 deadline that preceded the October 2020 due process hearing.
Even though she had evidence noting the lack of changes between the goals and objectives listed above, Mitchell still came to the decision that the September 2, 2020, IEP provided FAPE and ordered that it be implemented.
After the parent appealed Mitchell’s decision in circuit court, FCPS moved the appeal to federal court (a.k.a. the “rocket docket”). For a number of reasons, among which included the advance costs of a federal appeal, and the mental toll the hearing would have on the student (FCPS wanted to call the student as a witness), the parent requested that the appeal be dismissed without prejudice, with each party bearing its own costs and fees. FCPS agreed. Hence, Mitchell’s decision stood, even though it is flawed.
VDOE and FCPS Choose to Let Noncompliance Continue
After Mitchell released her decision, FCPS held additional IEP meetings that materially changed the September 2, 2020, and which resulted in what FCPS’s Procedural Support Liaison Manager Angelina Prestipino called FCPS’s “finalized IEP proposal of May 25, 2021”. It wasn’t an amended version of the September 2, 2020, IEP. It was a new IEP.
After the parent identified transition plan and other issues with FCPS’s May 25, 2021, IEP, FCPS refused to hold another meeting with the parent until August of 2021, even though some of the goals and objectives would be almost four years old by that point.
After the parent filed the state complaint, FCPS justified the outdated transition plan in the May 25, 2021, IEP by saying the hearing officer decided it provided FAPE. Yet, for some reason FCPS changed other parts of the IEP that Mitchell said provided FAPE. Why no change to the transition plan? Why didn’t they leave the rest alone?
VDOE followed FCPS’s argument. Among other things, VDOE stated the following:
. . . we decline to find here that Student’s transition plan became “outdated” within the limited period following the Hearing Officer ruling and the series of IEP meetings.
Yet, in the years prior to the due process hearing, the parent contacted VDOE about problems related to FCPS’s IEPs and specifically the student’s transition plan.
This wasn’t a case of the plan becoming “outdated within the limited period following the Hearing Officer ruling and the series of IEP meetings.” The student’s transition plan had been outdated for years—and VDOE knew this.
In addition, the resolution request submitted to FCPS on September 9, 2020, in advance of the due process hearing, included a request for an IEP that provides FAPE, to include, but not limited to, a transition plan that is in compliance with federal and state regulations.
Although VDOE knew problems existed, VDOE refused to initiate its own investigation of FCPS in the years prior to the due process hearing, too.
VDOE’s actions and inactions support the findings of the United State Department of Education (USDOE) Office of Special Education Programs (OSEP) investigation of VDOE. USDOE OSEP’s June 23, 2020, Differentiated Monitoring Support (DMS) letter states:
“Completely ignoring credible allegations of noncompliance is not a reasonable method of exercising the State’s general supervisory responsibilities.”
Yet, FCPS continued to ignore credible allegations of noncompliance—and it did so well before the due process hearing.
The following is included in the LOF it released in response to the parent’s complaint.
• Special education regulations ( 8 VAC 20-81-10) define “transition services,” in the context of secondary transition, as “a coordinated set of activities for a student with a disability that is designed within a results-oriented process” that is (i) is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; and (ii) based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests and includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, if appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services for students with disabilities may be special education, if provided as specially designed instruction, or related services, if they are required to assist a student with a disability to benefit from special education.
• These regulations (34 CFR §§ 300.43 and 300.320(b); 8 VAC 20-81-110.G.10) set forth requirements regarding secondary transition services. Transition services are to be based on the individual student’s needs, taking into account the student’s strengths, preferences, and interests. Beginning no later than the first IEP in effect when the student turns 16 (or younger if determined appropriate by the IEP team) and updated annually, the IEP must additionally include a statement, if appropriate, of interagency responsibilities or any linkages.
• Parent has asserted that LEA’s proposed 2021 IEP addenda failed to include an updated transition plan.
• LEA has stated that in regards to Parents allegations regarding [LEA’s] addenda, developed and proposed from February 2021 through May 2021, LEA maintains that the Hearing Officer’s November 30, 2020[,] decision resolutely found that the pre-existing transition plan …provided Student FAPE.
• In reaching our finding on this Subissue, we find the following compelling:
o There is no indication in the record that Parent requested revision to Student’s transition plan in the context of the series of IEP meetings following the Hearing Officer’s ruling;
o The record further indicates that Student refused to attend all…meetings with [Student’s] Employment and Transition Representative, suggesting a consequent lack of additional transition plan assessment information that might assist the IEP team; and
o LEA has stated that as directed by the Hearing Officer, [LEA] will convene an annual IEP meeting prior to September 2, 2021[,] to review and update all aspects of Student’s IEP as appropriate, including but not limited to, the transition plan….; and
o While Parent has specifically asserted that the transition plan in LEA’s May 25, 2021, proposed addenda is nearly identical to a May 3, 2019, IEP,15 we note that the May 25, 2021, transition goals and services are identical to those set forth in the September 2, 2020, IEP—which the Hearing Officer found provided FAPE.• To the extent Parent may seek to suggest, by inference, that Student’s transition services were outdated as set forth in the September 2, 2020, IEP, we note that the appropriate venue for such a challenge is an appeal of the Hearing Officer’s ruling. Our records indicate that (i) on or about May 27, 2021, Parent appealed the November 30, 2020, decision to state court; and (ii) the case was removed to federal court on June 28, 2021, where its disposition is pending.
• Further, we decline to find here that Student’s transition plan became “outdated” within the limited period following the Hearing Officer ruling and the series of IEP meetings.
• Based on the foregoing, the VDOE finds the LEA in compliance on this Subissue.
Due Process Hearing Officer versus Federal Regulations
Mitchell made a decision about an IEP that had glaring problems.
VDOE is required to follow federal and state regulation, but Mitchell’s decision has to be followed, too.
FCPS materially changed the IEP ordered by Mitchell, so FCPS could have included the transition plan in its changes, but it didn’t.
VDOE knew that FCPS changed the IEP ordered by Mitchell and took no issue with this. Why, then, did it not hold FCPS responsible once FCPS proposed a new IEP and failed to include an updated transition plan with that IEP? Mitchell’s decision did not dictate that the IEP be left unchanged. The IEP team was not barred from holding more meetings, amending the IEP and/or proposing a new IEP.
Going back to OSEP’s statement, VDOE failed to exercise the “State’s general supervisory responsibilities” for years and then failed to hold FCPS accountable after it proposed another IEP without an IEP that provided FAPE.
If you’d like to share your own stories related to transition plans, VDOE, school districts in Virginia, Hearing Officer Rhonda Mitchell and/or other hearing officers, please email me.
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