Independent Educational Evaluation: VDOE Rules FCPS in Noncompliance; Follows OSEP Monitoring Report

Struggling to obtain an Independent Educational Evaluation (IEE) in Virginia (or in another state)?

Below is an example of an IEE-related Letter of Findings, which the Virginia Department of Education (VDOE) issued after it found Fairfax County Public Schools (FCPS) in noncompliance.

It resulted in FCPS reimbursing $1,000 for the evaluation.

VDOE’s Letter of Findings (LOF) language can be used as guidance as you write your own state complaint in Virginia. If you live in another state, explore if your state has the same regulations as Virginia or if those regulations are in line with IDEA.

Background

Virginia’s IEE regulations are inconsistent with federal regulations and restrict parents’ IEE rights—a fact the U.S. Department of Education’s Office of Special Education Programs (OSEP) pointed out to VDOE in its June 23, 2020, Differentiated Monitoring Report. In the area of IEE’s, OSEP concluded:

Based on a review of documents and interviews with State personnel, for the reasons set forth above, OSEP concludes that the provision of Virginia’s regulation, 8VAC20-81-170(B)(2)(a) and (e), are inconsistent with 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502, because the State’s regulation restricts a parent’s right to an IEE at public expense to only those areas in which the public agency had previously evaluated the child.

Virginia’s Response?

Virginia counties ignored OSEP’s report.

June 26, 2020, after OSEP’s report was released, I emailed the report to Jen Krempasky, FCPS’ Senior Educational Services Specialist, Due Process & Eligibility. I stated: 

Please see the Monitoring Letter released by the U.S. DOE for Virginia.

Among other things, on page 16, it states:

“OSEP Conclusions Based on a review of documents and interviews with State personnel, for the reasons set forth above, OSEP concludes that the provision of Virginia’s regulation, 8VAC20-81-170(B)(2)(a) and (e), are inconsistent with 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502, because the State’s regulation restricts a parent’s right to an IEE at public expense to only those areas in which the public agency had previously evaluated the child. Required Actions/Next Steps Within 90 days of the date of this letter, the State must . . .”

https://www2.ed.gov/fund/data/report/idea/partbdmsrpts/dms-va-b-2020-letter.pdf

July 6, 2020, Krempasky responded:

Thank you for the U.S. Department of Education’s Differentiated Monitoring and Support report. We will work with the Virginia Department of Education (VDOE) to ensure Fairfax County Public Schools (FCPS) remains compliant with the Regulations Governing Special Education Programs for Children with Disabilities in Virginia. At this time, FCPS has not yet received any additional guidance from VDOE, and as such, must continue to operate under the current regulations.

I filed a state complaint in response.

October 2, 2020, VDOE issued a Letter of Findings that finds FCPS in noncompliance and weighs heavily on the OSEP report. The Letter of Findings specifically states:

Bound by the OSEP report, we find that LEA must grant Complainant/Parent’s request for an “audiological”/“auditory processing” IEE. Further, to the extent Complainant/Parent has already procured this independent educational evaluation,” LEA must ensure that it provides for this independent evaluation unless it demonstrates in a due process hearing that this independent evaluation fails to meet LEA’s criteria. (8 VAC 20-81-170.B.2.b.2).

In reaching our finding, we note that, per the OSEP report, LEA’s attempt to “cure” any omission in conducting its own audiological evaluation does not relieve it of its obligation to grant Complainant/Parent’s request for an “audiological”/“auditory processing” IEE.

Based on (i) the particular facts and circumstances before us; and (ii) OSEP’s directives, we find LEA in noncompliance on this Issue.

FCPS’ Response to VDOE’s Letter of Findings

After receiving VDOE’s LOF, FCPS wrote me a later, in which Lourrie Duddridge, Senior Specialist, Due Process and Eligibility wrote:

FCPS will reimburse you $400.00 towards the cost of the audiologival/auditory processing evaluation, which is in line and stated it would pay $400, which was the going rate that it had set for the evaluation I’d had done.

I reminded FCPS that I had advised it over and over that the cost would be $1,000—and cc’d VDOE.

FCPS revised its offer and reimbursed me $1,000.

Use VDOE’s Decision to File Your Complaint

VDOE’s decision can be used by other parents statewide, to make their own case for IEE approval, within counties that remain in defiance of OSEP’s report.

For example, say a Virginia LEA does a “comprehensive” evaluation that consists of just a psychological evaluation and an educational evaluation. The parent doesn’t agree with the evaluation and requests an IEE for a psychological, educational, auditory processing, visual processing, ATS, and OT evaluation. The LEA can’t deny the parent just because the LEA itself did not do these evaluations. It has to approve the parent’s IEE request or initiate due process. In the case of FCPS, it did neither.

October 2, 2020 Letter of Findings

A redacted and abbreviated version of the Letter of Findings is below. The complaint included other issues, but for the purpose of this article, I’ve provided the portions related to IEEs.