Sample State Complaint: Noncompliance of Evaluation Timeline and FAPE

8.6.20: Article first published. 7.24.22: Article updated and republished.

The following is a complaint that was submitted to the Virginia Department of Education (VDOE).

VDOE found Fairfax County Public Schools (FCPS) in noncompliance.

It is among the first state complaints I wrote and errs on the long side. If I did it again, I wouldn’t include all of the emails. All that really needed to be said is: The evaluation was requested on X date and the evaluation report was provided on Y date—and then provide documentation of this.

This is clear in VDOE’s Letter of Findings, which it submitted in response to the complaint, and which is included toward the bottom of this post. It was a cut and dry situation and could have been summed up in fewer words and email examples.

Nonetheless, this remains an example of a complaint that ended with the Local Education Agency (LEA), in this case FCPS, being found in noncompliance. I redacted the student’s name and other personal information before sharing the article here.

Also of note: The IEP referenced was developed at the end of the 2015–16 school year. The school staff advised against doing evaluations during “summer session”. Year later, this advice is something I’ve heard—and/or heard of—FCPS state dozens of times. Avoiding evaluations during summer sessions 1) helps lighten LEA’s summer loads and budget (most teachers aren’t on contract during the summer) and 2) delays the evaluation of students. Such a mindset puts budgets and summer vacations ahead children’s well-being.

Sample Complaint: Noncompliance of Evaluation Timeline and FAPE

Individualized Education Program (IEP)—Implementation, ATS

FCPS failed to implement XXXXXX’s IEP.

Specifically, XXXXXX’s IEP dated 6/29/16 states, “determines AT required for access to curriculum” and “The IEP team is requesting an ATS consultation for September of 2016.” The consultation did not take place in September (instead, it extended over a long period), the ATS report was not provided until November 2016 (see below for info on inconsistent dates related to report), and XXXXXX was deprived of full access to needed AT services throughout the first quarter of the 2016/17 school year.

Applicable Regulations:

The IDEA 2004 implementing regulations, at 34 C.F.R. 300.323(c)(2), and the Virginia Regulations, at 8 VAC 20/81/110.B.6, state that a school division shall provide special education and related services to a student with a disability in accordance with the student’s IEP.

The IDEA 2004 implementing regulations, at 34 C.F.R. 300.323(c)(2), and the Virginia Regulations, at 8 VAC 20/81/110.B.2, require each local education agency to ensure that an IEP is implemented as soon as possible following parental consent to the IEP.

Sec. 300.105 Assistive technology

(a) Each public agency must ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in §§300.5 and 300.6, respectively, are made available to a child with a disability if required as a part of the child’s—

(1) Special education under §300.39;

(2) Related services under §300.34; or

(3) Supplementary aids and services under §§300.42 and 300.114(a)(2)(ii).

(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings is required if the child’s IEP Team determines that the child needs access to those devices in order to receive FAPE.

Additional Documentation:

8/20/16

I e-mailed Procedural Support Liaison Jean Massie, asking about scheduling the ATS evaluation.

8/30/16

After not receiving a response from Jean Massie, I resent her my 8/20/16 e-mail.

9/5/16

I e-mailed Mary Artz and Jean Massie:

When will he be evaluated by ATS? Can we schedule this ASAP, so he can start the year with everything he needs?

9/6/16

Mary Artz e-mailed me:

I have sent requests for ATS consult to our specialist. I’m not sure yet of her assigned days at our school.

9/8/16

I e-mailed Jean Massie:

I’m concerned that the ATS eval hasn’t been scheduled I understand this is the first week of school, and that XXXXXX isn’t the only student to address, but the ATS eval is something I asked about end of last school year.

9/9/16

Jean Massie responded:

ATS: This summer with ATS we established AIM & Learning A. accounts. At SCMS all students have high access to computers, so XXXXXX will not feel singled out when using such. I will check into the ATS feedback.

10/11/16

Karen Burke e-mailed Christina Schneider and Trish Portare:

I met with XXXXXX today to take a look at his writing. I was able to complete an inventory with him both hand written and on the keyboard as well as take a look at his spelling. After completing the inventory I showed him Co:Writer. He likes the tool and now has access on the laptop in his English 7 class. We also discussed Learning Ally and Bookshare. He likes Learning Ally but is frustrated by the quality of the narrator for some books. Some books have more than one audio file, so it may be worth exploring if one is not working well. If he needs Learning Ally or Co:Writer software installed in other classrooms, please let me know. Next steps:

Please fill out the attached forms and include a writing sample from the beginning of the year. One writing sample is fine. The forms can be filled in and emailed back to me online. I cannot process my report without that vital input from you. XXXXXX has access to Co:Writer in English 7. Please encourage its use over the next 2 weeks. I would like one writing sample where he has used it, even if for a shorter writing assignment. I have not tried it over Blackboard, but it should work. If not, he could compose in Word or Google doc and copy/paste into Blackboard.

10/12/16

I e-mailed Christina Schneider with concerns about XXXXXX being pulled out of class and thus missing more instruction and having more work to make up.

Christina Schneider responded:

I am so sorry – the Assistive Technology Specialist pulled him out to receive baselines for her data.  She only has a very limited time with us, as she services many students.  She usually coordinates this through English, and works closely with me.  I didn’t know he’d be gone almost the entire class.  However, as a result, not only does he have access to Learning Ally, he also has CoWriter.  He missed reading our book, Freak the Mighty, which he has access to on Learning Ally.  I read 3 chapters, through Chapter 8.  If he gets a chance, he can read those on Learning Ally.  If not, we’ll talk more about it in class next time.  So sorry!  I agree with you.

I e-mailed Christina Schneider:

Also: I requested an ATS eval end of last school year and was advised that it would be best done beginning of this school year. When I asked at the beginning of this school year, I was advised, per my previous email, that AIM was it for XXXXXX. Since it sounds like there is more available, which I thought to be the case, can we get the testing wrapped up this month?

10/13/16

Christina Schneider responded to my 10/12/16 e-mail:

Yes, your request for ATS evaluation was scheduled to begin this September, and I know that Ms. Burke has been fully evaluating him since the beginning of the school year for any additional ATS services he may qualify for.  After evaluation is complete, another IEP meeting will be convened, and the findings will be recorded.  As soon as I hear, the SPED office here at SCMS will be contacting you, and I’ll be meeting with you.

I replied to Christina:

I requested an ATS eval end of last school year and was advised that it would be best done beginning of this school year. When I asked at the beginning of this school year, I was advised, per my previous email, that AIM was it for XXXXX. Since it sounds like there is more available, which I thought to be the case, can we get the testing wrapped up this month? As you may know, I fought for years to obtain help for XXXXXX and this last year in particular he’s endured test after test. My hope is that he can settle into this year, with everything he needs in place ASAP.

Christina Schneider replied:

Yes, I understand, and appreciate your communication!  Either I, or Mary Artz, or Karen Burke will get back to you with information as soon as possible.

10/24/16

I e-mailed Christina Schneider:

Is it possible to obtain a status report on this this week?

10/25/16

Karen Burke e-mailed Christina Schneider:

You can let mom know that I am recommending that he receive ATS support and that the report should arrive soon.

Christina Schneider e-mailed Karen Burke:

I’ve been assuring her that the report will be complete soon, but she’s been asking for it for weeks. Could I give her a more precise time frame?

10/26/16

I had my monthly meeting at South County Middle School and again asked about ATS.

Mary Artz e-mailed Karen Burke:

“Ms. XXXXX is asking about status of ATS eval.”

Karen Burke replied to Mary Artz:

I am done with any pull out time for now. We have placed Co:Writer in classrooms to see if it is helpful. I am working on securing an iPad with apps like Co:Writer and ClaroPDF for writing support. We can also put Learning Ally and Bookshare support there as well. I will be adding him to my list for support and my report should be coming soon.

Mary Artz e-mailed me and Christina Schneider:

Ms. Burke is done with any pull out time for now. Co:Writer has been placed in classrooms to see if it is helpful.  Ms. Burke is working on securing an iPad with apps like Co:Writer and ClaroPDF for writing support. Learning Ally and Bookshare can also be put on the iPad for support there as well. Ms. Burke will be adding XXXXXX to her ATS list for support and her report should be coming soon.

I sent a follow-up e-mail related to the morning meeting, to Stefanie Raleigh, Jean Massie, Trish Portarte, and Mary Artz. I also addressed Mary’s e-mail from earlier in the day. The following is from the portion of the e-mail related to ATS.

Mary, Thanks for following up on the ATS eval. The two programs you mentioned would be great to access at home, too. *Do you know if there are any programs to help with the organization piece? We have his daily schedule lined up in Google Calendar, and I’m going to start adding the Blackboard info to it, so we have everything in one place, but is there anything ATS has used to help students with Executive Functioning? If there’s a better way, I’d love to know.

10/28/16

Mary Artz e-mailed me:

I have uploaded the English Lit book from AIM  onto XXXXXX’s google account for now.  It does not have the read aloud capability but Ms. Burke is loading this and other software onto an iPad for XXXXXX’s use.  If you would like to contact her directly , feel free to do so. Her information is kcburke@fcps.edu.” 

I e-mailed Karen Burke:

Mary Artz at SCMS forwarded your information to me. She mentioned that you were uploading programs for XXXXXX’s use to an iPad, and I wondered about the timeline for getting XXXXXX started.

Karen Burke e-mailed me, Christina Schneider, and Mary Artz:

XXXXXX currently has access to Co:Writer and the Learning Ally Link software on laptops here at SCMS. Co:writer is word prediction software that assists with spelling. I am working on getting an iPad set up for him with Co:Writer and another app called ClaroPDF. That will allow him to take a picture of a document and keyboard right on the document. It will also allow him to fill in PDF documents supplied by his teachers (through Google Apps for Education) and to read any PDF books from sources such as AIM-VA. I will also make sure the Learning Ally app is available on it. I plan to have the iPad set up next week. Once it is ready to go, I am happy to set up a time to meet with you and show you how it works. We can also arrange for the iPad to come home daily to support homework completion. Please let me know if you have any other questions.

I e-mailed Karen Burke, Christina Schneider, and Mary Artz:

Having access to these programs at home would be useful. Can they be loaded onto a home computer? If not, having access to the laptop would be helpful. Yes, once you’re ready, please contact me to set up a time to meet. Also: Are there any programs you can suggest to address Executive Functioning issues?

10/31/16

Karen Burke e-mailed me:

I can provide the installer for Co:Writer for XXXXXX to use on your home computer. I have attached a permission form for the Co:Writer software. Please fill it out and send to SCMS to either Ms. Artz or Ms. Schneider. As soon as I get the form I can send home a CD with the installer. For executive function support, there are many options in both Google Apps and on the iPad. Along with the apps I described in my earlier email, XXXXXX can also use reminders and the calendar to keep track of assignments and due dates. He can also use the timer on the iPad to keep track of work and break times. As soon as the iPad is ready I will send along a permission form for that to be able to go back and forth from school to home.

I e-mailed Karen Burke:

Is there a way to get this on his computer without a CD? He doesn’t have a CD drive.

Karen Burke e-mailed me and Christina Schneider:

As long as it is a Windows or Mac operating system I can send the installer via flash drive. I do not currently have access to an installer that will work on a chrome book.

11/1/16

I e-mailed Karen Burke, Christina Schneider, and Mary Artz:

Attached is the signed AT Agreement for Co:Writer. I’d like XXXXXX to have access to Draft:Builder, too. This is a request I made last year, when I first asked about access to AIM, Learning Ally, etc. What needs to be done to make this happen?

Karen Burke e-mailed me, Christina Schneider, and Mary Artz:

If you are OK with it, I can add Draft:Builder to the returned pdf and add the installer to the flash drive as we discussed earlier. The same issues for the installer will be in place. It will work for windows or Mac, but not for a Chromebook. I did not look at Draft:Builder with XXXXXX this year as we were focusing on tools that can be easily integrated into Google Drive.

I e-mailed Karen Burke, Christina Schneider, and Mary Artz:

I didn’t know you were focusing on Google Drive. My understanding was that the ATS eval would assess XXXXXX to match programs to fit his needs, rather than limiting that matching to use via a certain platform. Can XXXXXX be assessed instead for programs that best address his needs? We have a Chromebook, a PC, and a Mac at home, so we can handle pretty much anything here, though we have limitations on newer models not having CD/DVD access. Flash drives/download links could help us around that, though.

11/2/16

Christina Schneider e-mailed me, Karen Burke, and Mary Artz:

XXXXXXs teachers use Google Drive and/or Classroom when working on assignments.  If he used Draft Builder, it would be more difficult for him to share and edit his work with me.  There would be quite a lot more steps involved in getting the work to me this way.  Since he needs time when completing work, I think it would add an unnecessary burden to what he already needs to do.  I feel that using Draft Builder would limit his progress.  We are actively helping to guide his writing by using graphic organizers and conferencing, while he uses a computer at school with Co Writer, Learning Ally, and Read Aloud on it.  Has he tried Google Voice?  It’s automatically built in, under the Tools tab.  He can speak it, and it’ll type for him.  He could also use Inspiration, but again, that is very limiting, with many burdening extra steps involved.  The results would be a further slowing of academic progress.  At home, if you would like, he could use these programs.  He’d just have to figure out a way to get his writing to me.

11/2/16

I e-mailed Christina Schneider, Karen Burke, and Mary Artz:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

I forwarded Jean Massie my e-mail of the same day, which was sent to Christina Schneider, Karen Burke, and Mary Artz. This included the other e-mails within this strand and the following note written specifically to Jean:

As you know, I’ve been asking for an ATS eval for XXXXXX since last school year. It’s disappointing that we’re almost done with the first quarter of this school year, and we’re still working through this. If you could take a look at the below I’d appreciate it. I want what best helps XXXXXX, not what is easiest to share in the classroom/with teachers. We can sort out the sharing, but have to help XXXXXX first.

Karen Burke e-mailed me and Christina Schneider:

I have added Draft:Builder to the current agreement and attached a copy for your records. A flash drive with the windows installers for both programs was dropped off at school today. There is a Mac installer for Co:Writer. I do not have one for Draft:Builder for Mac at this time.

Hopefully you will be able to install both programs with no difficulty. I also included some quick card directions for both programs on the flash drive. I am working with XXXXXX’s team to determine a time in the next week to work with him on the proposed new tools on the iPad. With the end of the quarter this week I did not want to pull him from class. I hope you enjoy the long weekend, and please let me know if you have any questions.

11/16/16

Mary Artz e-mailed me:

The ATS report is in and you should be receiving a copy if you haven’t already. As per regulation, we will need to open up an IEP addendum to include ATS services on the IEP (which is a box on the accommodation page).

*Please note that, although the date on the report is 11/4/16, I wasn’t made aware of the report until Mary’s e-mail of 11/16/16. I received a copy of the report via USPS the following day.

The Assistive Technology Recommendations Report, dated 11/4/16, states:

Based on the results of the written productivity profile, it appears that XXXXXX’s assistive technology needs in the area of written composition are not currently met with the use of on-site technology.

*Please note that this report confirms that XXXXXX’s needs were not being met.

11/17/16

I e-mailed Mary Artz:

XXXXXX came home yesterday, with news that he’d been provided an iPad for use in class. The report arrived yesterday, too.

Can we handle the addendum during the Dec. 13th meeting?

I’ll contact Karen about setting up a time to talk/demonstrate the programs.

Mary Artz e-mailed me:

December 13 will work for me to complete the addendum.

I e-mailed Karen Burke:

Thank you for sorting out the tech support for XXXXXX.

I would like to meet you for a demonstration, ideally with XXXXXX so that we’re all on the same page.

Can you meet early morning, after school, or during his seminar time? *I really don’t want to pull him out of class if we can avoid it.

11/18/16

Karen Burke e-mailed me:

Thank you for getting in touch. The first time I have available to meet during learning seminar will be on Tuesday Nov. 29. That will be at 9:05. Does that work for you? I will also be at SCMs next week on Tuesday morning and will check on XXXXXX during English and Science. I will not pull him out of class for that. Those are the classes that he and Ms. Schneider identified to start with as he gets used to the new tools. Please let me know if the 29th at 9:05 will work for you.

11/21/16:

I e-mailed Karen Burke:

I have a meeting with XXXXXX’s IEP team at 8:45 AM on the 29th. Do you have time a little later that morning, closer to 9:30?

11/22/16

Karen Burke e-mailed me:

We can push to 9:30 after your other meeting on the 29th. That will leave about half of the seminar period to talk.  I checked in with XXXXXX today about using Google drive to turn in work to his teachers. He also asked about printing. Right now at school the best solution is to upload work to Google Drive. He can print from there if needed. That may work at home as well. for Airprint to work, I think you may need to make sure the iPad is on your home network. You can do this through the Wi-Fi settings. The black cord is for charging the keyboard, which needs to be done separately from the iPad using the white cord. If XXXXXX turns off the keyboard when not in use he should be able to get a full week of use on one charge. I am sorry that was not clear.

I am attaching the agreement for the iPad so it can continue to come home. You can sign and email back to me like the software one. I just need the front page, the rest is information for you.

11/29/16

I met with Karen Burke, XXXXXX, and Jean Massie, to learn more about the iPad and programs that XXXXX had been provided.

VDOE’s Letter of Findings:

The following is VDOE’s response to the complaint. One of the positive things about filing a complaint, even if it doesn’t go the way you wish, is that VDOE provides the applicable regulations and other language that can later be used in other complaints, due process, and so on.

While you might be disappointed by an outcome, use it as a learning experience.

Evaluation/Reevaluation/Eligibility- Timelines

Free Appropriate Public Education (FAPE)- Assistive Technology

Ms. XXXXX alleged that FCPS failed to comply with the regulatory mandates of special education when they failed to complete the Student’s technology evaluation within the appropriate time lines. Specifically, she alleged that “Student XXXX’s IEP dated June 29, 2016 states, ‘determines AT for access to curriculum’, and ‘The IEP team is requesting an ATS consultation for September of 2016.’ The consultation did not take place in September (instead it extended over a long period of time), the ATS report was not provided until November 2016, and Student was deprived of full access to needed AT services through the first quarter of the 2016/2017 school year.”

Applicable Regulations:

  • 34 C.F.R. 300.323(c), and 8 VAC 20-81-70.H
  • 34 C.F.R. 300.105, and 8 VAC 20-81-70.F.
  • 8 VAC 20-81-10.

Findings:

The office of Dispute Resolution and Administrative Services finds FCPS in noncompliance on this issue.

Analysis:

  • Special Education laws and regulations state that if a reevaluation is conducted for purposes other than the triennial, the reevaluation process, including eligibility determination, shall be completed in 65 business days of the receipt of the referral by the special education administrator or designee for the evaluation. The parent and eligibility group may agree in writing to extend the 65-day timeline to obtain additional data that cannot be obtained within 65 business days.
  • The student’s IEP dated June 29, 2016 states that the student requires Assistive Technology and that an Assistive Technology consultation will be requested in September 2016.
  • Special education laws and regulations require that an IEP be implemented as soon as possible following parental consent. The fact that the IEP team determined that student would need Assistive Technology in June 2026 and that an evaluation needed to be conducted to determine the appropriate type of AT that would be needed, requires that an evaluation be completed within the 65-day timeline unless otherwise agreed to by the Parent. There is nothing in the record that supports that the Parent agreed to an extension of completing the evaluation. Therefore, 65 business days from June 29, 2026 is September 28, 2016. FCPS states in its answer, that data collection forms were not completed until October 11, 2016, which falls outside of the timeline. Additionally, FCPS states that student did not receive an AT until November 3, 2016 (an iPad). Thus, the student went several months without the AT as required in the IEP due to the delay in the evaluation.
  • For the foregoing reason we find FCPS in noncompliance on this issue.

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