FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part III

This is part III in a series about Fairfax County Public Schools (FCPS) ignoring Office for Civil Rights’ (OCR) November 30, 2022, letter of findings and resolution agreement with FCPS. The series discusses noncompliance that occurred before OCR’s findings, OCR’s findings, noncompliance that continues to occur, FCPS’s open defiance of OCR’s findings, FCPS modeling continued noncompliance to staff, and what FCPS is supposed to be doing pursuant to its own resolution agreement with OCR.

The focus of part III is FCPS’s refusal to convene teams of knowledgeable committee members, its refusal to use and document data in compliance with IDEA and Section 504, and its refusal to ensure individuals with credentials to interpret data are in attendance at IEP or 504 Plan meetings.

Additional Reading:

FCPS at Fault for Failing to Ensure Placement Decisions Made in Compliance with Section 504

OCR found that FCPS failed “to ensure that placement decisions were made by a group of persons knowledgeable about the students and the meaning of the evaluation data, in violation of the Section 504 regulation at 34 C.F.R. §§ 104.33 and 104.35 . . .” (Page 2, Letter of Findings)

Continued Noncompliance

During a February 10, 2023, meeting, FCPS refused to convene a group of persons knowledgeable about the student and the meaning of the evaluation data and failed to make placement decisions that are in compliance with Section 504 regulation at 34 C.F.R. §§ 104.33 and 104.35.

The members of the IEP team convened by FCPS for the February 10th meeting had either never been on the student’s IEP team and/or had never worked with the student and/or had been among the FCPS staff members who had always tried to refuse and strip the student of services.

FCPS refused attendance to the February 10th meeting to the student’s IEP case manager, special education teacher, general education teacher, school psychologist, and school counselor, all of whom advocated for the student during the 2021-22 school year, opposed FCPS central office members, and wrote a letter of dissent documenting their disagreement with the actions of central office staff.

Instead, FCPS’s director of procedural support Dawn Schaefer, who previously provided false information to VDOE in relation to this student, attended the meeting, as did FCPS Procedural Support Liaison Carolyn Edner, who spent years trying to strip and refuse services. This is the same team that met in early November 2022, before the public release of the OCR agreement (but during the time FCPS was negotiating the resolution agreement with OCR) and refused the student compensatory education at that time.

The result wasn’t surprising. Dawn, Carolyn, and company refused to provide compensatory services and made the decisions based on data they didn’t have the credentials to interpret and/or data they cherry picked. In addition, they refused to document the exact data used.

The following are a few statements they made during the meeting, which support the above allegation of noncompliance. Keep in mind that during the time period supposedly measured for progress, OCR found that FCPS was limiting, refusing, and watering down services, so any “progress” was based on limited, refused, and/or watered-down services,

Samantha Tolan: What we have prepared today is to look at the pandemic period of March 2020 through June 2022. . . . So I’d like to continue with the information that we do have. Mrs. Pitts, do you mind?

Megan Pitts: Sure. So the other information on here is just the information that was already presented in the decision worksheet. It’s the same information we kind of talked about in our meeting in November, based on where he was when he graduated, including the reports that we discussed at that time.

Parent: Which you cherry pick. We didn’t discuss the reports at that time. What you did was you cherry picked one one data point, and that’s about all we discussed. Yet I’ve got this June 3rd IEP, which you guys didn’t give me until–This is for STUDENT is 2021-22 IEP. They gave it to me the day after he graduated. Classy, right? And in here, we’ve got all sorts of things, all sorts of goals, all sorts of needs for STUDENT. So if I’m looking at this, I’m looking at all these areas of needs that STUDENT needs per a IEP that stated, just after he graduate, oh, June 3, just before he graduated. So that tells me that Fairfax County 100% knew that he had a bunch of needs that it wasn’t addressing. So we’re going to need to make sure that all that stuff gets on there, too.

Megan Pitts: So I did take the information from both the strengths and the needs, and made sure to add it to this area, because I know that was something that you’re concerned about it.

Parent: But you just used it from the IEP, right? You didn’t use it from his evaluations,

Megan Pitts: I did use the information from the IEP because that was the thing, the information that was relevant at the time.

Parent: Okay, but why wouldn’t the evaluations have been relevant at the time?

Samantha Tolan: We also included information from the evaluation. So the IEE is on here, as well as the KTEA, QRI. So the various evaluations that were conducted.

Parent: Except it’s not. Where’s the where’s the IEE for the vision? Where’s the IEE for the speech language, and where’s all the information for the IEE for the psychoeducational? You guys, you guys picked and chose on this, and I fought you on it before because you decided to go with the evaluations that you did, instead of defending those evaluations and deny my request for an IEE. Instead, you approved the IEE. You approved the providers. You approved the scope of the IEEs, and then you approved payment and acceptance of the IEEs. But then I got into these meetings, and all of a sudden I had people saying, well, we’re not going to go with this, we’re going to go with our own stuff, and we’re not going to do anything with those IEEs, which you can’t do. That’s not how it works.

Samantha Tolan: So we pulled the information from the IEPs that were available during this timeframe. Okay, and this is the information that was provided to you ahead of time. Based on the information that we do have, STUDENT was making progress on his goals and succeeding in his classes.

Parent: Okay, well, that’s a joke, because those goals are from 2017. So I mean, STUDENT had those goals for 2017 . . . So this is laughable. This is absolutely laughable at best, because it’s a lie. It’s false. . . .

Samantha Tolan: It’s not false Mrs. PARENT.

Parent: Then give me the data.

Samantha Tolan: Mrs. PARENT, this is the information that we have.

Parent: Based on what ?

Samantha Tolan: If there are other things that you’d like to add to this decision worksheet, we can certainly do that.

Parent: Based on what?

Samantha Tolan: What would you like to be added?

Parent: You tell me. What is this significant progress based on?

Samantha Tolan: This is the progress based on the goal that were implemented from December 1st through June 11. And he did show some progress. When we had to revert back to the other IEP based on the due process appeal, he was continuing to show progress on those goals.

Parent: So, here’s the thing. Goals aren’t measured, goals aren’t measured by some progress. Goals are measured by did the student meet the goal? Did the student get 30 out of 40 on whatever it is? That’s what that should say. To say the student made some progress. What exactly does that mean? That what the student like, turned in one thing? What does some progress mean? There’s no qualification up there. No metrics, nothing.

Megan Pitts: There’s no qualification on this, but on all of the progress reports that were provided to you during the time period, along with all of the documentation that was provided to you that during the time period, all of that information was included, and I didn’t put it on to a decision worksheet, because it’s already been, it’s already already been provided, it’s already been talked about.

In all the years the students was enrolled in FCPS, Megan Pitts was never on an IEP team for the student, never attended an IEP meeting for the student, never provided the parent IEP-related records related to the student, and never held a significant or even slightly-of-note conversation about the student with the parent, and never spoke to the parent for longer than a sentence here and there. Yet, somehow Megan felt comfortable insisting that data related to progress had already been provided and discussed with the parent.

Given the parent continued to request the data, why wouldn’t Megan or Samantha provide it? Dawn Schaefer was at the meeting, too. Why didn’t she bring up the data? Decisions are supposed to be made upon informed consent, so why didn’t FCPS do everything possible to ensure informed consent could occur?

Instead, Megan refused to provide evidence of when the information was provided, how it was provided, and on what data it was based, and she refused to include it in FCPS’s documentation. Instead, she went with the simpleton, stripped-down wording stating the student made “progress” instead of using data to buttress such an allegation.

Samantha Tolan previously blocked the IEE data from being included in IEPs between 2020 and 2022, which is consistent with OCR’s findings that staff were directed to limit, reduce, and water down services and instruction during that time period. This made it convenient in 2022, to state the FCPS team was considering the IEP information that had been available “at the time.” After all, the IEP information was missing everything that had been reduced and limited.

What Compliance Looks Like

In its Letter of Findings, OCR stated the following:

The Section 504 regulation, at 34 C.F.R. § 104.33, requires public school districts to provide a free appropriate public education (FAPE) to all qualified students with disabilities in their jurisdictions. An appropriate education is defined as regular or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met, and that are developed in accordance with the procedural requirements of 34 C.F.R. §§ 104.34-36. Districts are required to conduct an evaluation of any person who, because of disability, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement. 34 C.F.R. § 104.35(a). Implementation of an IEP developed in accordance with the Individuals with Disabilities Education Act (IDEA) is one means of meeting these requirements. 34 C.F.R. § 104.33(b)(2). In interpreting evaluation data and in making placement decisions, a recipient school district must draw upon information from a variety of sources, establish procedures to ensure that information obtained from all such sources is documented and carefully considered, and ensure that the decision is made by a group of persons, including persons knowledgeable about the student, the meaning of the evaluation data, and the placement options. 34 C.F.R. § 104.35(c).

In addition, the Section 504 regulation, at 34 C.F.R. § 104.36, requires that school districts establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of IDEA is one means of meeting this requirement.

The Section 504 regulation, at 34 C.F.R. § 104.6(a), provides that when OCR finds that a district
has discriminated against persons on the basis of disability, the district shall take such remedial
action as OCR deems necessary to overcome the effects of the discrimination. Compensatory
services are required to remedy any educational or other deficits that result from a student with a disability not receiving the evaluations or services to which they were entitled. Additionally, the Section 504 regulation at 34 C.F.R. § 104.61 (incorporating 34 C.F.R. § 100.6(b)) requires districts to keep records and accurate compliance reports in such form determined to be necessary to enable OCR to ascertain whether the district has complied or is complying with the regulations.

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