May 3, 2024, Virginia Department of Education (VDOE) found Prince William County Public Schools (PWCPS) at fault for failure to implement federal and state special education regulations at a systemic level.

VDOE identified four counts of noncompliance related to PWCPS' division-wide independent educational evaluation (IEE) practices, to include failure to follow U.S. Department of Education's (USDOE) June 2020 required changes to Virginia Administrative Code (VAC).

June 23, 2020, USDOE issued findings following its monitoring of VDOE and, among other things, advised VDOE that Virginia's IEE regulations were inconsistent with Individuals with Disabilities Education Act (IDEA) and must be changed "as soon as possible but in no case later than one year from the date of the report." In addition, VDOE was required to issue a memorandum to all local education agencies (LEA) throughout the state, instructing them to comply with IDEA and advising them that VAC would be changed to eliminate its inconsistencies with IDEA.

PWCPS failed to make the required changes and continued forward in the same noncompliance for almost another four years.

What Noncompliance?

Prior to the release of USDOE's June 2020 findings, VDOE asserted that "a parent can only request an IEE for a specific assessment that was conducted by the LEA as part of the original evaluation" and supported LEAs' decisions to deny parents' requests for evaluations not previously administered by the LEAs.

For example, if a LEA's evaluation included a neuropsychological evaluation, the LEA would restrict IEE request approval to a neuropsychological evaluation. If a parent requested an auditory processing evaluation, as one example, in addition to the neuropsychological evaluation, the LEAs would deny the auditory processing evaluation because the LEAs' evaluation didn't include auditory processing. In addition, LEAs refused to provide prior written notices (PWN) to document their IEE refusals and refused to file for due process against families in order to 1) defend their own evaluations and 2) defend their refusal to approve the IEE "component".

VDOE fixated on the "disagreement" portion of IDEA's IEE regulations, which stipulate that a parent may request an IEE if he or she disagrees with the LEA's evaluation. VDOE insisted that a parent couldn't disagree with an evaluation that was never provided, thus the parent had no right to an IEE "component" that the school division didn't previously administer itself.

VDOE failed to consider that the disagreement might relate to the scope of the evaluation administered by the LEAs.

June 23, 2020, USDOE found Virginia at fault for the "component" issue, because Virginia dictated that IEEs were limited to the components of the evaluations done by the school.

"The provisions in Virginia Administrative Code 8VAC20-81-170(B)(2)(a) and (e), as interpreted by the State and implemented by its LEAs, are inconsistent with the language and intent of 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502(b), which do not limit a parent’s right to an IEE at public expense to circumstances where the parents disagree with the results of a specific evaluation component already conducted by the public agency.

"When presented with inquiries from individuals about the scope of a parent’s right to an IEE at public expense, since 1995, OSEP has consistently taken the position that a parent’s right to an IEE at public expense is not limited to those assessments that were part of the public agency’s evaluation. OSEP’s interpretation is supported by the plain language of the statute and regulation, which do not restrict a parent’s right to an IEE at public expense to those assessments previously conducted by the public agency. See OSEP Letter to Fisher (1995); OSEP Letter to Baus (2015), available at: https://sites.ed.gov/idea/idea-files/policy-letter-february-23-2015-todebbie-baus/; and OSEP Letter to Carroll (2016), available at: https://sites.ed.gov/idea/ideafiles/policy-letter-october-22-2016-to-jennifer-carroll/. That is, disagreement over the evaluation conducted by an LEA includes a disagreement about the appropriate scope of the assessment, such as when an LEA fails to assess suspected areas of a child’s educational needs simply because of shortages of evaluation personnel. In addition, OSEP has explained that a parent’s right to an IEE is not contingent upon the public agency being first afforded an opportunity to conduct an assessment in an area that was not part of the initial evaluation or reevaluation. See OSEP Letter to Thorne (1990) and OSEP letter to Carroll (2016)."

In addition, USDOE's findings reiterated the following:

"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. §§ 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. §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502."

Immediately after the release of USDOE's June 2020 findings, PWCPS' neighbor Fairfax County Public Schools (FCPS) refused to implement USDOE's required changes. October 2, 2020, VDOE found FCPS at fault for systemic noncompliance regarding IEEs.

January 25, 2021—seven months after USDOE found Virginia in noncompliance and almost four months after VDOE found FCPS in noncompliance—FCPS provided training to its staff about "changes" regarding IEEs. However, FCPS presented the information as if the federal regulations had changed, rather than that the changes were in response to FCPS and VDOE being found in noncompliance of IDEA.

FCPS failed to advise staff attending the training that FCPS knew state regulations were inconsistent with federal regulations and that FCPS previously chose to train staff to follow noncompliant state regulations.

Meanwhile, just next door to FCPS, PWCPS continued along with the same noncompliance for another four years—even though USDOE required VDOE to ensure compliance.

It took a parent filing on behalf of numerous students for VDOE to identify PWCPS' systemic noncompliance and require corrective action plans.

Corrective Action Plan Problems

VDOE's corrective action plan (CAP) fails to address all students impacted by the noncompliance and limits actions to the students involved with the complaint.

By definition, systemic means division wide, and PWCPS and VDOE have a responsibility to address the impact on students whose parents don't know how to write state complaints, don't know about the state complaint option, and/or won't write complaints because they have a great fear of retaliation.

In addition, the wording of VDOE's CAP is problematic.

VDOE wrote that PWCPS must:

"Ensure that all PWCPS’ documents that reference 'component' in relation to IEEs are removed."

Is removing all the documents the answer? Perhaps VDOE meant removing references within the documents, rather than removing the documents. However, it isn't clear.

VDOE wrote that PWCPS must:

"Within thirty (30) days, develop an instructional memorandum advising all staff and administrators that parental requests for an IEE at public expense are not limited to the evaluations previously conducted by the school division. The memorandum must also echo OSEP’s guidance from the Letter to Carroll. LEA must submit a copy of the draft memorandum for approval and upon receipt this office retains the right to request additional information. Once approved, LEA must disseminate the instructional memorandum to relevant staff and administrators and provide this office with proof of dissemination, such as an email and/or bcc this office at issuance.

VDOE includes no requirement for PWCPS to make parents and other stakeholders within the county aware of the change, which means parents may refrain from requesting IEEs simply because of refusals they've received previously.

VDOE wrote that PWCPS must:

"Submit any correspondence related to parental requests for IEEs at public expense to this office for review each quarter from May 2024 to May 2025."

The state complaint covers a period of a year, yet FCPS isn't looking at the denials from the last year to identify students who have a right to IEEs requested on their behalf. Instead, it is limiting monitoring to quarterly future reviews.

VDOE wrote that PWCPS must:

"PWCPS must review and revise its criteria and submit a draft to this office within thirty (30) days. Once received, we reserve the right to request additional information. Once approved, PWCPS must disseminate this information to relevant staff and provide proof of dissemination, such as an email and/or bcc to this office at issuance."

Again, VDOE fails to require PWCPS to make parents aware of the changes.

VDOE wrote that PWCPS must:

" . . . due to PWCPS’ unexplained delay in processing Student 11’s parental request for an IEE at public expense, PWCPS must contact the parents to and provide this office with documentation demonstrating its efforts to determine whether the parents are still seeking an IEE at public expense. Provide the documented efforts within thirty (30) days."

Why isn't VDOE requiring PWCPS to determine the negative impact of delayed evaluations on the student, as well as the impact on the parent's rights to 1) meaningful participation in her student's education and 2) informed consent?

VDOE wrote that PWCPS must:

"Within thirty (30) days, convene a properly comprised IEP team meeting with Parent. During the meeting, PWCPS must review IEEs, consider eligibility for special education services, propose services that offer Student 4 a FAPE, and determine whether compensatory services are necessary to address PWCPS’ limited IEE approval in April 2023."

Why isn't VDOE requiring PWCPS to meet with all parents and students impacted within the last year, at a minimum, to determine whether compensatory services and/or reimbursements are necessary to address PWCPS' noncompliance?

What are IEEs?

Pursuant to Sec. 300.502(3)(i) of IDEA, an IEE is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" and is provided at public expense.

Parents of a child who has a disability have the right to obtain an IEE at public expense if the parents disagree with an evaluation administered by the public agency. "Public expense," as defined by Sec. 300.502(3)(ii), "means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.103."

After a parent requests an IEE, the "public agency must, without unnecessary delay, either—(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria."