Fairfax County Public Schools (FCPS) is in noncompliance with 20 U.S.C. 1414(b)(4), Sec 300.306, Sec. 300.305, Sec 300.321, 8VAC20-81-80(B), 8VAC20-81-80(C)(1), 8VAC20-81-80(D)(1), 8VAC20-81-80(D)(2), 8VAC20-81-80(D)(9).
In other words: FCPS is in noncompliance for refusing Parents rights’ to be deciding members of eligibility and IEP teams.
In the case of this example, Fairfax County Public Schools Procedural Support Liaison Carolyn Edner, a procedural support liaison for FCPS, and Samantha Tolan, an assistant principal, supervisor for exceptional education, and supervisor for Instructional assistants at South County High School are considered “experts” in special education by FCPS.
Carolyn is assigned to numerous schools by FCPS’s office of due process and eligibility (DPE) to attend meetings and ensure compliance with IDEA, and both she and Samantha were trained by DPE leadership. Between Carolyn’s work at multiple schools in FCPS and Samantha’s work at South County, the two represent FCPS at hundreds of IEP, 504, and/or eligibility meetings a year, hence the noncompliance extends beyond the one Student and meetings shared in this article.
The following shares one eligibility meeting during which Carolyn, Samantha, and two other FCPS staffers refused to allow Parent and Student full membership on an eligibility team, pursuant to IDEA and Virginia implementing regulations—and ignored the input of four other FCPS staff members who were the only staffers in the meeting who had worked with Student and/or had the credentials to interpret Student’s evaluations.
In addition, it’s an example of how FCPS staff ban together to refuse services to a student, even when there’s ample evidence supporting need of services for the student, which in this case meant FCPS ignored a medical doctor, a neuropsychologist, an FCPS school psychologist who agreed with the neurologist (whose evaluation supported the medical doctor’s evaluation), an IEP case manager/special education teacher, a general education teacher, a school counselor, and Parent and Student.
The IEP Meeting & Regs FCPS Refuses to Follow
Criterion C of FCPS’s Other Health Impairment (OHI) Basis for Committee Decision (BCD) form has a “yes” and a “no” box next to the following verbiage and asks the committee to indicate “yes” or “no” and provide additional information: “The limited strength, vitality, or alertness results in an adverse effect on the student’s educational performance. Functional academic performance is significantly impacted (e.g., performance on standardized tests, daily classroom performance, functional impact of medical condition on day-to-day performance, etc.).”
3.24.22: Jeremiah Caven, South County High School assistant principal, who had never worked with Student, and who doesn’t hold the endorsements or degrees to interpret and/or make diagnosis based upon the evaluations considered; Samantha Tolan, who had never worked with Student, and who doesn’t hold the endorsements or degrees to interpret and/or make diagnosis based up the evaluations considered; Carolyn Edner, who had never worked with Student and who had never met Student in person, and who doesn’t hold the endorsements or degrees to interpret and/or make diagnosis based up the evaluations considered; and Teia Westbrook-Johnson, an educator FCPS brought in from a different school, who had never worked with Student, and who doesn’t hold the endorsements or degrees to interpret and/or make diagnosis based up the evaluations considered stated “no” for Criterion C.
3.24.22: Tonya Blanchard, SCHS school psychologist, who had met Student on numerous occasions; Telia Johnson, SCHS special education co-chair, Student’s IEP case manager for 2021-22 school year, Student’s Anatomy Special education teacher, who had started working with Student in 8th grade, during IEP meetings for transition from middle to high school; Dennis Bennett, Student’s general education government teacher and IEP case manager for end of 2018-19 school year, who had worked with student starting Student’s 9th grade; and Armin Mustedangic, Student’s counselor, who had started working with Student starting in 12th grade; Parent; and Student stated “yes” for Criterion C.
3.24.22: Carolyn Edner stated the eligibility meeting must be stopped until the team could come into consensus, since the team was split evenly. Parent pointed out that the split wasn’t and even 4-4, but that it was 6-4 in favor of choosing “yes” for Criterion C. Carolyn stated that Parent and Student aren’t included in the team that must come to consensus. Although Parent protested against this decision, Carolyn and Samantha Tolan shut down the eligibility meeting and refused to continue, and waited almost another month (next meeting was 4.22.22) to have the next eligibility meeting.
20 U.S.C. 1414(b)(4) states [emphasis added]: “(4) Determination of eligibility and educational need Upon completion of the administration of assessments and other evaluation measures—(A) the determination of whether the child is a child with a disability as defined in section 1401(3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and (B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent.
Sec 300.306 states [emphasis added]: “300.306 Determination of eligibility. (a) General. Upon completion of the administration of assessments and other evaluation measures—(1) A group of qualified professionals and the parent of the child determines whether the child is a child with a disability, as defined in §300.8, in accordance with paragraph (c) of this section and the educational needs of the child”
Sec. 300.305 states [emphasis added]: “Additional requirements for evaluations and reevaluations. (a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation under this part, the IEP Team and other qualified professionals, as appropriate, must—”
Sec 300.321(a)(1) states [emphasis added]: (a) General. The public agency must ensure that the IEP Team for each child with a disability includes—(1) The parents of the child;
8VAC20-81-80(B) states, “The determination that a child is eligible for special education and related services shall be made on an individual basis by a group as designated in subdivision C 2 of this section.)
8VAC20-81-80(C)(1) states, “Upon completion of the administration of assessments and other evaluation materials or after determining that additional data are not needed, a group of qualified professionals and the parent(s) of the child shall determine whether the child is, or continues to be, a child with a disability and the educational needs of the child. If a determination is made that a child has a disability and requires special education and related services, an IEP shall be developed in accordance with the requirements of 8VAC20-81-110. (34 CFR 300.306, 34 CFR 300.308) 1. The determination of whether a child is a child with a disability is made by the child’s parent(s) and a group that is collectively qualified to: a. Conduct, as appropriate, individual diagnostic assessments in the areas of speech and language, academic achievement, intellectual development and social-emotional development; b. Interpret assessment and intervention data, and apply critical analysis to those data; and c. Develop appropriate educational and transitional recommendations based on the assessment data.”
8VAC20-81-80(C)(2) states [emphasis added], “C. Upon completion of the administration of assessments and other evaluation materials or after determining that additional data are not needed, a group of qualified professionals and the parent(s) of the child shall determine whether the child is, or continues to be, a child with a disability and the educational needs of the child. If a determination is made that a child has a disability and requires special education and related services, an IEP shall be developed in accordance with the requirements of 8VAC20-81-110. (34 CFR 300.306, 34 CFR 300.308) 2. The eligibility group composition. a. The group may be an IEP team, as defined in 8VAC20-81-110, as long as the above requirements and notice requirements of 8VAC20-81-170 are met. b. The group shall include, but not be limited to: (1) Local educational agency personnel representing the disciplines providing assessments; (2) The special education administrator or designee; (3) The parent(s); (4) A special education teacher; (5) The child’s general education teacher or if the child does not have a general education teacher, a general education teacher qualified to teach a child of the child’s age; or for a child of less than school age, an individual qualified to teach a child of the child’s age; and (6) At least one person qualified to conduct individual diagnostic examinations of children, such as school psychologist, speech-language pathologist, or remedial reading teacher.
4.22.22: The eligibility team met again. On this date, all team members consented to Criterion C. However, the same split occurred regarding Criterion D, which asks eligibility team members to indicate “yes” or “no” for the following: “The student requires specially designed instruction as a result of the other health impairment.”
4.22.22: The four eligibility team members who said no to Criterion D (Samantha Tolan, Jeremiah Caven, Carolyn Edner, Teia Westbrook-Johnson) indicated that they don’t agree with the data in medical and neuropsychological evaluation, then ignored input from teachers who worked with Student, and said that there isn’t enough data to say “yes”. None of these four team members hold the license or endorsements to make determinations, interpretations, and/or diagnosis based on the evaluations presented.
4.22.22: The six eligibility team members who said yes to Criterion D (Parent, Student, Tonya Blanchard, Telia Johnson, Dennis Bennett, Armin Mustedanagic) indicated that there is enough data to say “yes”. All of these team either held the license or endorsements to make determinations, interpretations, and/or diagnosis based on the evaluations presented, and/or had worked with Student.
4.22.22: As she did on 3.24.22, Carolyn Edner again stated that the eligibility team was evenly split and that Parent and Student aren’t included in the team that must come to consensus. Specifically, Carolyn stated the following at about the 1:51:47 mark of the meeting recording, after Student asked if Student was a member of the meeting” and after his IEP case manager, Telia Johnson, said yes:
Student: I have a question. Am I a part of the IEP team?
Telia Johnson: Yes.
Student: So what’s two plus four? Six. [There were four FCPS staff members in favor of providing services, in addition to Parent and Student, which would have made six, but Carolyn kept saying the team was split 4-4].
Carolyn Edner: “So for the BCD, we take input from Parent and Student, but the FCPS team is the one making the proposal. So your input is noted, this meeting is being recorded. We have heard and considered both your input and [Parent’s]’s input.”
4.22.22: Unlike the 3.24.22 meeting, Carolyn Edner did not shut down the meeting and state that the 4-4- “evenly split” team must come to consensus, thus the meeting had to end until that could happen.
4.22.22: Although the eligibility team was split 6-4 on Criterion D, Carolyn Edner, Samantha Tolan, Jeremiah Caven, and Teia Westbrook-Johnson decided that the answer to Criterion D would be “no” and thus Student was not eligible under OHI and FCPS would refuse specially-designed instruction.
4.22.22: Tonya Blanchard, the only member of the team with the credentials to interpret the evaluations considered at the eligibility meetings, repeatedly stated that Student was impacted, was eligible, and did need specially-designed instruction. Her comments were supported by Telia Johnson, Dennis Bennett, and Armin Mustedangic, who provided teacher reports on what Student experiences in class. However, the other FCPS team members – who had no credentials and/or had never worked with Student, disagreed with them. The following are a few of the interactions that took place:
At about the 1:39:18 point of meeting recording:
Carolyn Edner: And then Ms. Blanchard, Ms. Johnston, Mr. Bennett and Mr. Mustedanegic. If you all could craft your statement also. It would be four members of the team believe whatever.
Tonya Blanchard: Though, I don’t I don’t I don’t believe it.
Carolyn Edner: Okay.
Tonya Blanchard: I think that there is evidence so it’s not a belief. It’s not a feeling. There is evidence supported by the neuropsychological and the educational, and Dr. Davis’s report.
At about the 1:44:13 point of the meeting recording:
Samantha Tolan: It’s still believe. You guys believe that, that the data shows that he requires specially-designed instruction.
Tonya Blanchard: I don’t believe. It’s, it’s the word belief is like a feeling. I don’t feel it. The data is there. So it’s not a belief.
Carolyn Edner: So you are stating—
Tonya Blanchard: The information is there. I’m stating it as, it’s a fact. The information is in these reports. It’s not a belief.
Sec. 300.306(c) states [emphasis added]: “(c) Procedures for determining eligibility and educational need. (1) In interpreting evaluation data for the purpose of determining if a child is a child with a disability under §300.8, and the educational needs of the child, each public agency must—(i) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and (ii) Ensure that information obtained from all of these sources is documented and carefully considered.
8VAC20-81-80(D)(1) states: “Procedures for determining eligibility and educational need. (34 CFR 300.306 through 34 CFR 300.311) 1. In interpreting evaluation data for the purpose of determining if a child is a child with a disability and determining the educational needs of the child, the local educational agency shall: a. Draw upon information from a variety of sources, including aptitude and achievement tests, parent input and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and b. Ensure that information from all these sources is documented and carefully considered.
Carolyn’s and Samantha’s training led the team to refuse to agree with the data in the IEE reports, refuse to agree with school psychologist Tonya Blanchard’s interpretations of the IEEs, and refuse to agree with teacher reports providing first-hand information on how Student is academically-impacted.
After Parent repeatedly opposed Carolyn’s noncompliant statements, Samantha repeatedly threatened to end meeting; Carolyn and Samantha repeatedly told Parent that information she wanted included was not relevant; and/or that information Parent wanted included in the BCD form and other paperwork being filled out for the eligibility would not be included, because Parent was not a member of the team that filled out the paperwork.
Carolyn stated that Parent, Student, and the four other team members who disagreed with Carolyn, Samantha Tolan, Jeremiah Craven, and Teia Westbrook-Johnson, could write a letter of dissent. However, Carolyn stated that Parent’s and Student’s dissent would not be included in the paperwork. After Parent asked for specific wording to be inserted into the statement of dissent, the following conversation took place at the 2:21:23 mark of the meeting recording:
Carolyn Edner: Just to clarify, [Parent], you can add your own statement separately. This is for FCPS team members in dissent and—
Parent: That’s not what it says.
Carolyn Edner: –they are welcome to get input from whoever they wish. And you may also you always have the ability to write whatever statement you want.
Parent: No, but it says members in disagreement. So, I’m not a member? [Parent was referring to FCPS’s Special Education Eligibility form, which states, “Members in disagreement must provide a statement of dissent below or on an attached sheet”]
Carolyn Edner: Members of the eligibility committee and the FCPS team.
Parent: I thought I was a member of the eligibility—
Carolyn Edner: Parent input is welcomed and valued. But this is dissent from the decision that the FCPS team made.
Parent: Okay, you’re gonna need to add that to the list of the procedural safeguards, because that’s not in federal, state or Fairfax regulations. So if you could find me where it says that maybe it’s in Carolyn’s regulations?
The conversation about who is and who isn’t a member picked up again at about the 2:25:48 mark of the recording, at which point Carolyn drives home her point that parents are simply participants and not members of the team.
Parent: Okay, so let’s put my stuff in there now. Okay.
Carolyn Edner: So this is the place that the team members in disagreement would write [Parent].
Parent: Yeah. I’m a team member who’s in disagreement. So what you can do is put their names there. Is there another place on this form for me below?
Carolyn Edner: So Parent, this is for the FCPS team members, you would write your own, just like when you have parents who would give consent if consent was needed on the eligibility, and then you can write your own statement separately that we will attach to this, but this is the FCPS statement.
Parent: Yeah, so I’m a member. So I’d like to if you want to put that in quote and put your name next to it. And then you can separate it by putting my remarks in quotes and putting my name next to it because I’m a member.
Carolyn Edner: As I stated, this is the FCPS team member in dissent statement. Parent may write her own
statement that will be attached separately as the parent statement of concern with the decision.
Parent: Okay, Carolyn, my understanding is that you as Fairfax County’s procedural support liaison, therefore, as you being the talking head for Fairfax County, are treating me as a parent as not a member because that says member right there, that it’s your belief that the parent is not a member of this process. I understand.
Tonya Blanchard: Well, so I do have a question about that. When when you go up at the signature part, it’s the signatures of eligibility committee members, and the parent participants. All right, so I guess it says right there.
Carolyn Edner: Correct. So it’s eligibility committee, committee members who are in dissent, who statement this is.
8VAC20-81-80(D)(7) states: “The eligibility group shall work toward consensus. If the group does not reach consensus and the decision does not reflect a particular member’s conclusion, then the group member shall submit a written statement presenting that member’s conclusions.”
8VAC20-81-80(D)(9) states: “9. The eligibility group shall have a written summary that consists of the basis for making its determination as to the eligibility of the child for special education and related services. The written summary shall include any written statement from a member whose conclusion differs from the other members’ determination. The summary statement may include other recommendations. The written summary shall be maintained in the child’s scholastic record.”
To date, FCPS has not provided Parent evidence of the existence of a “written statement” in compliance with 8VAC20-81-80(D)(9).
Carolyn Edner stated the prior written notice would not be created during the meeting and that she would write it. The following conversation took place at about the 2:39:13 mark of the meeting recording:
Telia Johnson: Okay. And then Ms. Edner, you said that we have to go to the prior written notice?
Carolyn Edner: We are not going to do that as a group. I will I will make sure to write the prior written notice and send it to [Parent] within 10 business days.
The prior written notice written by Carolyn Edner and emailed to Parent includes no mention of any dissention.
Because Student had already been qualified as eligible as a student with eligibilities, Student did not have to go through the eligibility process again under another category, such as “other health impairment” before decisions could be made about provision of related services for Student. However, after the four IEEs that took place in 2020 were completed, FCPS insisted that student had to be found eligible under other special education categories, and thus delayed the provision of FAPE to student. The eligibility meetings started in Fall 2021 and served to delay the IEP meetings.
8VAC20-81-80(F) states: “F. Eligibility for related services. A child with a disability shall be found eligible for special education in order to receive related services. Once a child is found eligible for special education, decisions about the need for related services shall be made by the IEP team. An evaluation may be conducted as determined by the IEP team. (34 CFR 300.34 and 34 CFR 300.306(c)(2))”
After the March and April 2022 meetings, FCPS held IEP meetings. Based on the above, FCPS proposed IEP for the 2021-22 school year (which it refused to provide to Parent until day after student graduated) failed to provide FAPE. It was not developed with parent participation.
When Parent complained to VDOE in 2022, FCPS’s Samantha Tolan submitted an affidavit trashing parent, calling Parent difficult and the reason meetings had to be drawn out. Yet, Parent was simply fighting for the Parent’s right under IDEA and implementing state regulations to be a full, deciding member of the eligibility and IEP teams. VDOE found FCPS in compliance regarding Student’s eligibility, even though Parent and Student didn’t participate as members and Carolyn Edner and Samantha Tolan, and the two others who followed them, ignored the four members of the team who were the only ones who had either worked with Student and/or had the credentials to interpret the evaluations.
Parent filed the above information, based on FCPS refusing Parent input and VDOE stated that it had already found FCPS in compliance regarding eligibility and the complaint was time barred.
And yet . . . VDOE knew all of the above when it incorrectly found FCPS in compliance per eligibility (and ignored the medical doctor, neurologist, school psychologist, school counselor, two teachers, and Parent and Student, who all said Student needs services).
Parent reminded VDOE that the systemic complaint based on the above was related to parent participation, not eligibility, and that systemic violations aren’t isolated to one date, hence Carolyn Edner making statements of FCPS’s practices applies to more than one eligibility meeting. Parents in FCPS have been experiencing this for years. It just happens that Carolyn finally admitted the practice while a recorder was rolling.
In addition, Parent reminded VDOE that the IEP that followed this eligibility meeting was based on numerous eligibility and IEP meetings during which Parent and Student were denied rights under IDEA and state implementing regs, hence VDOE must consider denial of FAPE.
To date, VDOE refuses to take action, instead allowing the noncompliance to stand.