This is part VII 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 VII is FCPS’s failure to ensure that placement decisions are made by a group of persons knowledgeable about the students and the meaning of the evaluation data.
As with other noncompliance identified in OCR’s 11.30.22 letter of findings, this is another instance of longstanding problems that existed before COVID and continues today.
Longstanding Problems
March 1, 2017 — about three years before COVID — OCR issued a letter of findings to FCPS regarding OCR Complaint No. 11-16-1331. Among other things, OCR cited failure to ensure that placement decisions are made by a group of persons knowledgeable about the students and the meaning of the evaluation data:
Based on the information received, OCR has identified possible compliance concerns, with
respect to the composition of the participants at the XXXX Section 504 meeting. Specifically,
OCR expressed concerns to the Division regarding whether the group of participants at the
meeting included persons knowledgeable about the Student, the meaning of the evaluation data,
and the placement options. As discussed above, OCR notes that a new Section 504 Plan was
developed for the Student at this meeting, and the related aids and services provided to the
Student were changed. In order to complete this investigation, OCR would need to interview all
of the participants of that meeting and determine whether the Student was harmed or a denied a
FAPE as a result of the meeting. As stated above, before OCR completed the investigation, the
Division expressed willingness to resolve this allegation.
As stated in its Resolution Agreement for Complaint No. 11-16-1331, FCPS had until February 10, 2017, to address the following:
By February 10, 2017, the Division will provide training to all XXXX staff responsible for convening Section 504 meetings, including school counselors and all school administrators. The training should address, at a minimum: (i) the Division’s responsibilities for ensuring that all Section 504 placement decisions are made by a group of persons knowledgeable about the student, the meaning of the evaluation data, and the placement options; (ii) the Division’s responsibilities with regard to evaluating any student who needs or is believed to need special education or related services due to a disability.
Yet little more than three years later, FCPS engaged in countywide noncompliance for this very issue — and trained staff to engage in manners opposing the 2017 training mandated by OCR.
OCR’s Findings & FCPS’s Continued Noncompliance
In its 11.30.22 letter of findings, OCR states the following about FCPS’s noncompliance in this area:
Pages 1–2
Specifically, OCR found that during remote learning, the Division failed or was unable to provide a FAPE to thousands of qualified students with disabilities and failed to conduct evaluations of students with disabilities prior to making significant changes to their placements and 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:
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).
Page 21:
Accordingly, for students with disabilities who did not receive those services while learning remotely, the Division was responsible for convening a group of persons knowledgeable about the student to make an individualized determination whether, and to what extent, compensatory services are required. The Division’s efforts to deter parents and staff from so much as discussing compensatory services—even for students that the Division knows did not receive the services they were due—is flatly at odds with the Division’s obligations under Section 504.
In subsequent compensatory education meetings, FCPS has failed to ensure “a group of persons knowledgeable about the students and the meaning of the evaluation data” are in attendance to discuss compensatory education.
Teachers who are neither vision specialists, psychologists, speech-language pathologists, audiologists, or [INSERT YOUR SPECIALIST’S NAME HERE] are making determinations about evaluations from such individuals, even though they aren’t qualified to interpret the evaluations themselves. This noncompliance includes FCPS’s failure to ensure persons knowledgeable about the student period. FCPS is not ensuring that teachers who are actually knowledgeable about students are in attendance either.
What is § 104.33?
§ 104.33 states the following:
(a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.
(b) Appropriate education.
(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that
(i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and
(ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such a person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of this subpart. If so, the recipient remains responsible for ensuring that the requirements of this subpart are met with respect to any handicapped person so placed or referred.
(c) Free education –
(1) General. For the purpose of this section, the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of this subpart. Nothing in this section shall be construed to relieve an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.
(2) Transportation. If a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person or his or her parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient.
(3) Residential placement. If a public or private residential placement is necessary to provide a free appropriate public education to a handicapped person because of his or her handicap, the placement, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.
(4) Placement of handicapped persons by parents. If a recipient has made available, in conformance with the requirements of this section and § 104.34, a free appropriate public education to a handicapped person and the person’s parents or guardian choose to place the person in a private school, the recipient is not required to pay for the person’s education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or otherwise regarding the question of financial responsibility are subject to the due process procedures of § 104.36.
(d) Compliance. A recipient may not exclude any qualified handicapped person from a public elementary or secondary education after the effective date of this part. A recipient that is not, on the effective date of this regulation, in full compliance with the other requirements of the preceding paragraphs of this section shall meet such requirements at the earliest practicable time and in no event later than September 1, 1978.
What is § 104.35?
(a) Preplacement evaluation. A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is belived 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.
(b) Evaluation procedures. A recipient to which this subpart applies shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).
(c) Placement procedures. In interpreting evaluation data and in making placement decisions, a recipient shall
(1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior,
(2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered,
(3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and
(4) ensure that the placement decision is made in conformity with § 104.34.
(d) Reevaluation. A recipient to which this section applies shall establish procedures, in accordance with paragraph (b)of this section, for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.
Additional Reading:
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part I
- Focuses on FCPS denying services to students who didn’t participate in online learning.
- Fairfax County Public Schools Ignores Office for Civil Rights; Noncompliance Continues, Part II
- Focuses on FCPS reducing, limiting & watering down services and instruction
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part III
- Focuses on 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.
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part IV
- Focuses on FCPS’s refusal to provide access to educational records, specifically “information recorded by the Division regarding the amount of special education, related aids or services provided during the Pandemic Period, including the option to review IEP or Section 504 service logs.”
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part V
- Focuses on FCPS’s practice of equating provision of a computer with provision of a Free Appropriate Public Education (FAPE)—and then denying compensatory education.
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