Fairfax County Public Schools Failed to Comply with Federal Regulations; Continued to Deny IEEs
Virginia's Independent Education Evaluation (IEE) regulations will be changed to align with federal regulations.
Local educations agencies (LEA) are required to follow the federal regulations (even before the state regulation change) or they will be found in noncompliance.
However, seven months passed before Fairfax County Public Schools (FCPS) presented this information to special education lead teachersâ€”even though it was already found in noncompliance for failure to comply with federal regulations.
The information below provides a timeline of events that occurred during the seven-month period between when Virginia (and specifically FCPS) was advised it had to change its IEE-related regulations and when FCPS presented the change to its special education lead teachers.
June 23, 2000
The United Stated Department of Education's (USDOE) Office of Special Education Instruction (OSEP) released a Differentiated Monitoring Report about Virginia. Among other things, it cited VDOE for regulations that are inconsistent with federal regulations, and required the regulations to be changed.
In regard to Independent Educational Evaluations, OSEP stated the following in its report:
Based on a review of documents and interviews with State personnel, for the reasons set forth above, OSEP concludes that the provision of Virginiaâ€™s regulation, 8VAC20-81-170(B)(2)(a) and (e), are inconsistent with 20 U.S.C. Â§ 1415(b)(1) and 34 C.F.R. Â§ 300.502, because the Stateâ€™s regulation restricts a parentâ€™s right to an IEE at public expense to only those areas in which the public agency had previously evaluated the child.
In addition, OSEP included "Required Actions/Next Steps" in t he report. These include the following two actions/steps:
Within 90 days of the date of this letter, the State must:
1. Submit a written assurance to OSEP specifying that as soon as possible but in no case later than one year from the date of this report, in accordance with 20 U.S.C. Â§ 1415(b)(1) and 34 C.F.R. Â§ 300.502, the State will revise Virginia Administrative Code 8VAC20-81-170(B)(2)(a) and (e) to, at a minimum, remove the word â€œcomponentâ€ following the word â€œevaluation.â€
2. Submit to OSEP a copy of a memorandum that the State has issued to all LEAs, parent advocacy groups, and other interested parties instructing LEAs to comply with 20 U.S.C. 1415(b)(1) and 34 C.F.R. Â§ 300.502(b) by also providing an IEE at public expense in areas where the LEA previously has not conducted its own evaluation, unless the LEA has demonstrated, through a due process hearing decision, that its evaluation is appropriate; and advising that the State will be revising Virginia Administrative Code 8VAC20-81-170(B)(2)(a) and (e), to, at a minimum, remove the word â€œcomponentâ€ following the word â€œevaluationâ€ in accordance with 20 U.S.C. Â§ 1415(b)(1) and 34 C.F.R. Â§ 300.502(b).
June 24, 2020
OSEP Monitoring Report Release Date + One Day:
I emailed Jennifer Krempasky, who at the time was a FCPS Senior Educational Services Specialist. (She's now an assistant principal at Robinson High School.) I provided her the OSEP monitoring report and advised her that FCPS' IEE denials aren't in compliance.
July 6, 2020
OSEP Monitoring Report Release Date + 1 week and 1 Day:
Jennifer responded to my 6.24.20 email. FCPS chose to follow VDOE instead of OSEPâ€”even though OSEP found VDOE in noncompliance of federal regulations.
August 7, 2020
OSEP Monitoring Report Release Date + 6 Weeks and 3 Days:
I filed a state complaint against FCPS, related to its continued denial of IEEs.
August 13, 2020
OSEP Monitoring Report Release Date + 7 Weeks and 2 Days:
FCPS issued an IEE denial letter to the parents of an FCPS student.
September 21, 2020
OSEP Monitoring Report Release Date + 12 Weeks and 6 Days:
James F. Lane, the Virginia Department of Education's (VDOE) Superintendent of Public Instruction released "Superintendentâ€™s Memo #250-20". In the section about IEE's the memo states:
The VDOE has also worked with OSEP to clarify guidance concerning the provision of an Independent Educational Evaluation (IEE) at public expense. A parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to certain conditions. 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. Â§Â§ 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. Â§Â§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 20 U.S.C. Â§ 1415(b)(1) and 34 C.F.R. Â§ 300.502.
Once parental consent is obtained, each public agency must conduct a full and individual initial evaluation in accordance with 34 C.F.R. Â§Â§ 300.304 through 300.306 before the initial provision of special education and related services to a child with a disability under this part. 34 C.F.R. Â§Â§ 300.300(a) and 300.301(a). The public agency must ensure that the child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. 34 C.F.R. Â§ 300.304(c)(4); also 20 U.S.C. Â§ 1414(b)(3)(B). In addition, in conducting an initial evaluation (or reevaluation) of a child, the public agency must ensure that the evaluation is sufficiently comprehensive to identify all of the childâ€™s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. 34 C.F.R. Â§ 300.304(c)(6).
The Virginia Department of Education requests that this information be shared with members of your education community and local board of education. For additional information, please contact the Department of Special Education and Student Services, at firstname.lastname@example.org; telephone (804) 786-8079.
October 2, 2020
OSEP Monitoring Report Release Date +14 Weeks and 3 Days / VDOE Memo Release Date +1 Week and 4 Days:
VDOE issued a letter of findings in response to my complaint. It found FCPS in noncompliance. VDOE specifically stated:
Based on (i) the particular facts and circumstances before us; and (ii) OSEPâ€™s directives, we find LEA in noncompliance on this Issue.
November 17, 2020
OSEP Monitoring Report Release Date +20 Weeks and 3 Days / VDOE Memo Release Date + 6 Weeks and 4 Days:
FCPS issued an IEE denial letter to the parents of an FCPS studentâ€”after 1) I made FCPS aware of the IEE regulation portion of the OSEP monitoring report; 2) after VDOE made FCPS aware of the IEE regulation portion of the OSEP monitoring report; and 3) after an IEE-focused state complaint I submitted resulted in FCPS being found in noncompliance by VDOE.
January 25, 2021
OSEP Monitoring Release Date + 30 Weeks and 6 Days / VDOE Memo Release Date + 18 Weeks:
Over seven months after OSEP's report was released and about four months after VDOE's memo was released, FCPS held a special education lead teacher meeting during which it presented the changes related to IEEs.
FCPS' reasoning for presenting the regulations seven months after OSEP's report unknown.
What is know: FCPS continued to deny IEEs even after it was made aware of OSEP's report.
What follows below is a video of the IEE section of the meeting, a transcript of the IEE section of the meeting, comments from the chat room that were posted during the IEE section of the meeting, and the slides for the meeting.
Important: During the training, Rory Duffield was asked if FCPS is required to do its own evaluations after a parent presents a private evaluation. Rory cites Lourrie Duddridge's response, which she posted to the chat room. This is Lourrie's answer, as it appears in the chat room, with her capitalization:
It is not REQUIRED that FCPS conduct an evaluation.
***And yet, FCPS has delayed eligibility meetings in order to do its own evaluations, after parents have presented FCPS with private evaluations.
Partial Transcript for 1.25.21 FCPS Special Education Lead Teacher Meeting
Debbie Lorenzo (starting at about the 1:23:16 mark):
Our next presenter from due process and eligibility will be Rory, who's going to be looking at independent educational evaluations and just giving you some updates.
Rory Duffield (starting at about the 1:23:28 point):
Thank you, Debbie. Good afternoon, everyone. My name is Rory Duffield. 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 superintendents 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, Aaron, 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.
Any other questions? Well, thank you, everybody. If any further questions do pop up and feel free to contact us. Thank you, Lourrie, for putting that additional information in the chat. It is not required for FCPS to do that additional evaluation.
Partial Chat for 1.25.21 FCPS Special Education Lead Teacher Meeting
01:26:10.000 --> 01:26:10.900
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?
01:27:27.000 --> 01:27:27.900
Lourrie Duddridge - Due Process and Eligibility
It is not REQUIRED that FCPS conduct an evaluation.
01:27:35.000 --> 01:27:35.900
Erin VanAllan, special ed teacher