The Curious Case of Virginia Dept. of Education's State Complaint Findings: Determining Nature of Specially-Designed Instruction

Virginia Department of Education (VDOE) has a long history of engaging in incomplete state complaint investigations, making irregular decisions following its state complaint investigations, and/or ignoring credible allegations of noncompliance altogether.

United States Department of Education (USDOE) Office of Special Education Programs (OSEP) has noted VDOE's problematic state complaints a few times, in differentiated monitoring support (DMS) letters dated June 23, 2020, February 8, 2022, March 16, 2022, September 1, 2022, January 17, 2023, and February 17, 2023.

Yet, VDOE's state complaint process remains as bizarre as ever, with VDOE's investigation decisions reading as if VDOE didn't so much a peek at the evidence—more Ace Ventura than Sherlock Holmes.

In this case, VDOE makes a statement of noncompliance, but then finds Fairfax County Public Schools in compliance for that exact action. [Insert "Twilight Zone" theme song here.]

Example #1:

About this time last year, I filed a state complaint with VDOE, against Fairfax County Public Schools (FCPS). In response, VDOE issued a Notice of Complaint (NOC). According to VDOE, it then did an on-site investigation that it alleged included a review of the record, and then VDOE issued a Letter of Findings (LOF) on June 16, 2022.

In the June 16, 2022, LOF you'll find the following statement from VDOE:

“LEA has also correctly noted that Student, accordingly, would continue to receive specialized instruction and stated that It is not within the purview of the eligibility team to determine the nature of required specially designed instruction. o We agree, and find this aspect of Complainant’s allegations without merit.”

Breaking it Down

VDOE is correct in agreeing with FCPS's statement that "It is not within the purview of the eligibility team to determine the nature of required specially designed instruction."

300.306(c)(2) states that "if a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child." In VIrginia, you'll find 8VAC20-81-80(F), which states: “A child with a disability shall be found eligible for special education in order to receive related services. Once a child is found eligible for special education, decisions about the need for related services shall be made by the IEP team." Neither say decisions belong to the eligibility team.

However, VDOE failed to recognize that FCPS members of the eligibility team engaged in this very act of "determing the nature of required specially-designed instruction" even though other members tried to stop them.

Hence, why did VDOE rule Parent in the wrong? Why didn't it state FCPS in the wrong?

Given VDOE insists it reviewed the record, it would have listened to FCPS's Procedural Support Liaison (PSL) Carolyn Edner and Vice Principal and Special Education helm this discussion, with Samantha Tolan going so far as to harass Student and put Student on the spot for identifying the specially-designed instruction Student thought Student needed. Student knew Student needed help, but neither Student—nor Samantha nor Carolyn—are the experts in deciding the nature of the specially-designed instruction, nor was this discussion appropriate for the eligibility meeting.

In addition, Samantha engaged in predetermination when she told Student he didn't need specially-designed instruction, even though the rest of the team hadn't weighed in and no decision had been made.

Telia Johnson  1:01:38

I'll go first. So based off of the information and the data that we have, and the medical condition. I say, since there is an impact on STUDENT's reading due to this medical condition, he does require a specially designed instruction for reading.

Samantha Tolan  1:01:57

My question, Telia, is what is that specially designed instruction? And what would it look like.

Telia Johnson  1:02:04

Well, that's not the purview of the eligibility when we're talking about the BCD.

Samantha Tolan  1:02:11

I'm just curious. What is the specially designed instruction?

Callie Oettinger  1:02:14

Nope. No, Sam. You don't get it both ways. A few minutes ago, you were shutting me down. You're saying well, that's an accommodation. We can talk about that later. Goals, services, we can talk about that later. We're talking about eligibility, does he or doesn't he need it? Okay. So if you want to, you're just trying to do this because Telia didn't agree with you.

Samantha Tolan  1:02:31

That's not true. I'm trying to understand what is the specially-designed instruction that he needs.

Callie Oettinger  1:02:36

Then read Dr. Davis's report and read everything else that has been provided. Well, you guys, paid for.

Telia Johnson  1:02:45

The specially-design instruction in reading due to the medical condition. That is the specially-designed instruction, in reading, for reading.

Carolyn Edner  1:02:56

So, Telia, I'm asking this as a clarifying question.

Telia Johnson  1:03:00

Okay.

Carolyn Edner  1:03:01

We have a great deal of data that does show he requires specially-designed instruction, due to his reading issues as a student with a specific learning disability. I do not see specific data that shows he requires the specially designed instruction for this medical condition.

Telia Johnson  1:03:22

So based off of--

Student  1:03:26

I have a question Ms Edner, since you seem to kind of know so much. How much I mean, do you really know about me? I mean, you're never with me in class like Ms. Johnson is, I mean, I haven't really ever had an interaction with you. I mean, do you know what I do even know what I look like?

Carolyn Edner  1:03:45

Max, I appreciate the--

Student  1:03:47

I'm just I'm just wondering, because you're making all these points, like how you know so much. But I mean, are you aware like, you know, you've walked by me multiple times C200 I mean, do you even know what I look like? I mean, cuz you seem like you know so much about trying to what I need and what I don't need, but how much do you really know? I mean, Ms. Johnson is in a class with me, I, she's right there firsthand. And you're reading stuff off a piece of paper, and probably don't know much more other than that.

Callie Oettinger  1:04:24

Actually, she's not reading it off a piece of paper. The piece of paper from Dr. Davis 100% says that you need this specially-designed instruction. What she's getting this from is, I don't know where, I don't know where.

Samantha Tolan  1:04:36

So again, I'd like to just remind everyone of the norms that we need to respect everyone's opportunity to speak in this meeting so that we can come to a team consensus,

Student  1:04:46

Or we could respect what I need, like what I need to succeed in an educational environment, instead of just not giving it to me--

Samantha Tolan  1:04:55

And Student, that isn't something that you need.

Student  1:04:56

--like its a big issue. I mean--

Tonya Blanchard  1:05:01

According to the  report, this—

Samantha Tolan  1:05:02

I'm asking Student, what is it that you need for the specially designed instruction?

Student  1:05:02

Again, we're not talking about we're talking about eligibility. So--

Samantha Tolan  1:05:03

I'm asking Student, what is it that you need for the specially designed instruction? I'm asking you about what is it that you need.

Student  1:05:06

--if we're not going to talk about what the specialized program is, then we should move on to accommodations, because we're talking about eligibility right now.

Tonya Blanchard  1:05:22

So the experts are saying, in both of the reports, they're are talking about well, in Dr. Ling's report, you're talking about reading rate and arithmetic rate, arithmetic rates, we're talking about the fluency component. So it spills into both domains. It's not unheard of that that a medical condition is going to affect reading, and or math. And so this is what, if, it impacts, their fluency.

Telia Johnson  1:05:56

So, so, thinking back on that, because that's what I was getting ready to say. Thank you, Ms. Blanchard. So to answer your question, Ms. Edner, it impacts the slowed fluency, and accuracy. And so that's why I said specially specially designed instruction in reading.

Carolyn Edner  1:06:19

Thank you for that clarification. Ms. Westbrook, to help, my understanding is, while we discussed under specific learning disability, specially designed instruction, for the decoding and encoding and other factors that are contributing to his reading difficulties through his specific learning disability, while acknowledging the part that convergence insufficiency plays in his reading issues, I, I don't see what the specially designed in, what specially designed instruction would be required to support the convergence insufficiency. I completely see the accommodations. And I very much want to make sure that when we move to the IEP, we give [Student] the accommodations that he needs. So I want to be open to looking at information and having that informed position even though I've already stated what I see from the data. That is why I'm asking other team members so that if there is additional information, we are all hearing it.

Callie Oettinger  1:07:34

Well, why don't you read Dr. Davis's report? And also, again, it doesn't ask you what specially-designed instruction. That's to be determined later. If we said that over and over again. You're, you're, you're being very hypocritical. When I've tried to, when I've gone down this route before you shut me down. So now let's make sure the same rules apply to everybody. It says specially-designed instruction. It doesn't say what exactly is it? All right? But if you want to know what exactly it is, let's defer to the guy who actually did the functional vision assessment, which you guys paid for, which met all your criteria, and which you guys accepted. Okay? Let's go with that. That is the expert. That's the one who did the evaluation. You guys had an opportunity when, when I asked for these IEEs, you had the opportunity to take me to due process, to stand up and say that our evaluations are correct, we stand by our evaluations, and we are going to deny the IEE request. You had the opportunity to do that. You did not do that. Therefore, your evaluations, gone out of there. Alright? And my IEEs that we had, which you guys paid for, are what rule right now. You had the opportunity, you didn't do it. And for those of you that don't understand, I've sent multiple emails since the last, the last meeting and now on that, this is just the way it's supposed to work. And this is actually how it should have been working for years. If you don't agree with me on something, if we get to a stalemate, you guys are actually, if you really believe something should happen, you're supposed to take me to due process. And you guys don't do that. If you believe so wholeheartedly about it, take me to due process, but you didn't do it. Instead, you talked to the doctors, you contracted with them, they did their IEEs, you paid for them, you accepted them. That's what rules.

Carolyn Edner  1:09:32

So I am looking at the report and I am seeing medical therapy recommended and accommodations.

Tonya Blanchard  1:09:40

But part, but part of this, it doesn't, I don't think that Dr. Davis needs to say that and I mean it seems like you're looking for him to say it specifically. But when you know about the disorder, you know that it affects the rate, reading and arithmetic fluency. And so I, Dr. Davis doesn't say that specifically in his report, he doesn't spell that out. But when you put it all together and look at all of the reports, and you understand how it affects it, how it's a negative impact.

Samantha Tolan  1:10:17

So I don't think anybody's denying that there's an impact. I think what we're asking is if it requires specially designed instruction.

Tonya Blanchard  1:10:24

Right.

Samantha Tolan  1:10:24

What I'm hearing from Ms. Edner is that she believes that specially-designed instruction is not required, and that the impact can be rectified through accommodations.

Tonya Blanchard  1:10:33

I get it. So what I'm hearing is that we are not going to be in consensus here. And so in order to move on, where do we go from here, procedurally, do, do, for instance, do I write a dissent? How, where do we go from here, because we're going to be stuck here and not going to go anywhere in this on D.

Carolyn Edner  1:10:53

So procedurally, I would like to hear from all members of the FCPS team and then once we have input from everyone, I can inform the team of our next procedural step.

Tonya Blanchard  1:11:05

Okay.

Carolyn Edner  1:11:07

So Ms. Blanchard, do you would you like to follow up with your feeling on criterion D?

Tonya Blanchard  1:11:11

I think I've already stated my feelings. So it is, you know, maybe Mr. Bennett can chime in, in terms of how he's functioning in the class. And if he believes that, if he agrees or not.

Parent  1:11:27

Dennis, before you jump in, I just have one thing to say. I just want to remind all of you guys, when you guys were proposing all of these reading programs for [Student] for years, right for years, and you guys got nailed, because you got nailed for proposing an inappropriate program for [Student] four years in a row. Alright? And I sat in all these IEP meetings, and I said give me details about what the program is that you're going to do. And you wouldn't give it to me, you wouldn't tell me exactly what you were going to do with—

Samantha Tolan  1:11:55

[Parent], those are all things that have happened---

Parent  1:11:56

No, no, no. Let me. You're interrupting me. You're interrupting me.

Samantha Tolan  1:11:57

--and doesn't relate to any of the members on this team

Callie Oettinger  1:11:56

Stop talking and let me finish. Okay? You're making it longer. You would not put it down there, you wouldn't put the specific program down there. You wouldn’t put in, put the specific instruction down there, you wouldn't do anything down there. Now we have an outsider who's saying specifically what [Student] needs, and now all of a sudden you guys want well, what specifically is it, what is the specific instruction? Again, hypocritical. I just want to seed that for all of you who haven't been at all the other meetings. Okay? I'm done. Dennis. Sorry about that.

Dennis Bennett  1:12:10

No worries, that's okay. Um, so for me, personally, I um, let's see, I I'm kind of I'm kind of torn on this one. And I could be, I'm leaning towards what Telia and Tonya are advocating for which is that the student would require specifically-designed instruction. Now, where I am getting caught up is on what that specifically-designed instruction would look like. Now, I do understand that this isn't necessarily the area where we go into that detail on what that design instruction would look like. But for me, if, if the student is being impacted by the other health impairment, and I'm thinking as broadly as I can, if a student is being impacted by an other health impairment, I would, I would think that yes, that student would require some specifically-designed instruction to assist them with that other health impairment. Now, what that designed instruction, again, is going to entail I'm not exactly sure what that might look like.

In addition, in her affidavit, Samantha Tolan made a point of bringing in what the specially-designed instruction would be and stating—in a signed affidavit—that, of the four member who dissented to the determination of ineligibility, two members had questions regarding the specially designed instruction but did believe there was an educational impact.

Yet, in the statement of dissent that all four members wrote and put their names to, not one member stated a question about the specially-designed instruction. Instead, the wrote the following:

Psychologist, Special Education Teacher (Case Manager), General Education Teacher, and Counselor are in disagreement with the eligibility outcome.

[Student] was diagnosed with [REDACTED]. IEE (2020): Development Visual Assessment and Neuropsychological Evaluation, have noted that [Student] has difficulty with [REDACTED]. In the classroom, it has been observed that [Student] experiences dizziness and headaches, fatigue, limited stamina, when it comes to prolonged computer use. [Student] requires an organized and programmatic pattern of instruction, breaking the instructional material down into components as noted on the Neuropsychological Evaluation (IEE, 2020).

Yet, VDOE, found nothing amiss with Samantha Tolan continuing to focus on specific types of specially-designed instruction, to the point that she attempted to undercut the statements of staff members in her signed affidavit.

Bringing It Back to VDOE

What happened, VDOE? Did you not review the record as you said you would? Carolyn Edner stated throughout the meeting that the meeting recording was part of the record whenever I asked for something to be put down in writing. Did Carolyn or someone else withhold the record from you? Or, did you truly read or listen to the recording and still come to the conclusion that the VDOE is in compliance, even though you stated that the actions it took are in noncompliance?

Inquiring minds want to know.