May 11, 2023, Virginia Department of Education (VDOE) issued a Notice of Complaint (NOC) regarding Fairfax County Public Schools (FCPS) being in noncompliance regarding composition of IEP and eligibility team members.
The complaint alleges that specifically, since at least 2017, FCPS has engaged in the following: a) holding IEP meetings that are in noncompliance with IDEA and implementing state regulations; b) unauthorized practice without a license; c) unlicensed “diagnosis and treatment of human physical or mental ailments, conditions, diseases, pain, or infirmities”; d) procedural violation of Parent’s and Student’s opportunity to participate in the decision-making process regarding the provision of FAPE to Student.
8VAC20-81-110(C)(1)(d) and (e) and (f) state, “1. General. The local educational agency shall ensure that the IEP team for each child with a disability includes: d. A representative of the local educational agency who is: (1) Qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities; (2) Knowledgeable about the general education curriculum; and (3) Knowledgeable about the availability of resources of the local education agency. A local educational agency may designate another member of the IEP team to serve simultaneously as the agency representative if the individual meets the above criteria; e. An individual who can interpret the instructional implications of evaluation results. This individual may be a member of the team serving in another capacity, other than the parent of the child; f. At the discretion of the parent or local educational agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate. The determination of knowledge or special expertise of any individual shall be made by the party (parent or local educational agency) who invited the individual to be a member of the team;”
8VAC20-23-660 states the following endorsement requirements for reading specialists: “1. Graduated from a state-approved graduate-level reading specialist preparation program – master’s degree from a regionally accredited college or university required – that includes course experiences of at least 30 semester hours of graduate coursework in the competencies for the endorsement, as well as a practicum experience in the diagnosis and remediation of reading difficulties; 2. Satisfied the requirements for the reading specialist assessment specified by the Virginia Board of Education; and 3. At least three years of successful classroom teaching experience in which the teaching of reading was an important responsibility.”
8VAC20-23-690 states that an endorsement for school psychology requires “1. Option I. The candidate shall: a. Complete an approved program in school psychology; b. Earn a baccalaureate degree from a regionally accredited college or university and complete 60 graduate-level hours, 54 of which are academic coursework, exclusive of field-based experiences, that culminate in at least a master’s degree; and c. Complete an internship that is documented by the degree-granting institution. The internship experience shall occur on a full-time basis over a period of one year or on a half-time basis over a period of two consecutive years. The internship shall occur under conditions of appropriate supervision, that is, the school-based supervisor shall be licensed as either a school or clinical psychologist. The internship shall include experiences at multiple age levels, at least one half of which shall be in a public or accredited nonpublic school setting. 2. Option II. The candidate shall hold a currently valid certificate issued by the National School Psychology Certification Board.”
Pursuant to Code of Virginia, § 54.1-2900, it is unlawful for any person to practice medicine, osteopathic medicine, chiropractic, or podiatry or as a physician assistant in the Commonwealth without a valid unrevoked license issued by the Board.
Pursuant to Code of Virginia, § 54.1-2900, “Practice of medicine or osteopathic medicine” means the prevention, diagnosis, and treatment of human physical or mental ailments, conditions, diseases, pain, or infirmities by any means or method.
Pursuant to Code of Virginia, § 54.1-2900, “Patient care team physician” means a physician who is actively licensed to practice medicine in the Commonwealth, who regularly practices medicine in the Commonwealth, and who provides management and leadership in the care of patients as part of a patient care team.
Pursuant to Code of Virginia § 54.1-3600, “School psychologist” means a person licensed by the Board of Psychology to practice school psychology.
Pursuant to Code of Virginia § 54.1-3600, “Practice of psychology” means the practice of applied psychology, clinical psychology or school psychology.
Pursuant to Code of Virginia § 54.1-3600, the “practice of school psychology” means: 1. “Testing and measuring” which consists of psychological assessment, evaluation and diagnosis relative to the assessment of intellectual ability, aptitudes, achievement, adjustment, motivation, personality or any other psychological attribute of persons as individuals or in groups that directly relates to learning or behavioral problems that impact education.
House Bill 373 requires that in order to practice speech pathology, individuals will need to hold a valid license issued by the Board of Audiology and Speech-Language Pathology.
Effective July 1, 2014, the Virginia Board of Education shall no longer issue or renew licenses with an endorsement in speech-language pathology. Effective July 1, 2015, in order to practice speech-language pathology in Virginia public elementary and secondary schools, an individual shall hold a valid school speech-language pathologist license issued by the Virginia Board of Audiology and Speech-Language Pathology. Licensing of Speech-Language Pathologist | Virginia Department of Education
How IDEA and State Regs Played Out in FCPS
A speech-language IEE and a separate auditory processing IEE were administered by Dr. Jay Lucker in July 2020. Dr. Lucker identified areas of deficiency in both.
Dr. Lucker spoke with the FCPS IEP team in 2020. After he hung up from the call into the meeting, FCPS staff members said they didn’t agree with Dr. Lucker’s findings and wouldn’t be accepting them, even though these members didn’t have the credentials to even interpret the data themselves.
2020-21, 2021-22, and 2022-23 school years: FCPS IEP team members refused to incorporate data from Dr. Lucker’s into Student’s IEPs and refused to provide the services recommended by Dr. Lucker, even thought FCPS IEP team members didn’t have the credentials to even interpret the data themselves.
Dr. Lucker is a speech pathologist and audiologist. Although an audiologist attended from time to time, FCPS’s IEP teams between 2020-2023 did not include members licensed as speech language pathologists or with the credentials to interpret evaluations administered by speech language pathologists or with the credentials to make diagnosis of Students based on data collected during evaluations administered by speech language pathologists.
2020-21, 2021-22, and 2022-23 school years: No member of Student’s IEP teams held a valid license issued by the Board of Audiology AND Speech-Language Pathology.
A psychological IEE and a comprehensive neuropsychological evaluation were administered by Dr. William Ling in July 2020. Dr. Ling identified numerous areas of weakness, to include reading comprehension. In addition, his findings, as stated in his neuropsychological evaluation, led him to advise Parent to have Student assessed by a developmental optometrist for convergence insufficiency.
December 2020, Student was evaluated by Developmental Optometrist Dr. Tod Davis. Dr. Davis identified numerous areas of deficiency, to include convergence insufficiency earlier identified by Dr. Ling.
2020-21, FCPS held an eligibility meeting under the area of vision impairment and had FCPS employee Shira Brothers on hand as the expert. Shira isn’t licensed or even endorsed in the area of vision impairment. However, former FCPS Due Process and Eligibility (DPE) director Jane Strong deferred to Shira and asked Shira to interpret Dr. Davis’s evaluation of Student. At about the 1:00:45 mark of the recording for the meeting, Jane stated, “so let’s have Ms. Brothers talk to us about the Davis report, because I think that’s relevant.” Throughout the rest of the eligibility meeting,Shira and other non-licensed FCPS members of the eligibility team go on to insist that there just isn’t enough data to support the need for services for Student and that FCPS must do its own evaluations even though 1) the neuropsychologist’s evaluation supported the optometrist’s evaluation; 2) the school psychologist agreed that the neuropsychologist’s evaluation supported the medical evaluation; and 3) there were years of data showing Student had been exhibiting signs of the very issues the optometrist and neuropsychologist diagnosed, and with which the school psychologist agreed.
2020-21, 2021-22 and 2022-23 school years: FCPS IEP team members used cherry-picked data from evaluations done by Dr. Lucker, Dr. Davis, and Dr. Ling to diagnose Student’s needs. For all evaluations, FCPS IEP team members interpreted the evaluation data and, based on their evaluations, made diagnosis different from those of the doctors. In addition, they refused to incorporate data from the evaluations and provide services recommended by the doctors. For example, Psychologist Dr. Ling diagnosed Student with reading comprehension deficiencies based on the evaluations he was licensed, as a psychologist, to administer. The one exception was school psychologist Tonya Blanchard. Tonya, who was the only one licensed to practice school psychology, was repeatedly overruled by non-licensed staff who ignored her and were engaging in the practice of school psychology.
Since 2017, the majority of Student’s IEP teams have not included an individual licensed to practice school psychology. Yet, the IEP team members consistently engaged in “diagnosis relative to the assessment of intellectual ability, aptitudes, achievement, adjustment, motivation, personality or other psychological attribute” of Student that “directly relates to learning or behavioral problems that impact education.”
2020-21, 2021-22, and 2022-23 school years: Members of Student’s IEP teams DID NOT hold a valid license to serve as a reading specialist and address the reading-related components in the 2020 evaluations. However, they engaged in the practice of a reading specialist and overruling the school psychologist and licensed IEE providers. For example, when school psychologist Tonya Blanchard agreed with Dr. Ling’s findings related to Student’s vision, educator Teia Westbrook-Johnson, who claims to be an “expert” in convergence insufficiency, disagreed with the findings of Dr. Ling and Dr. Davis, and kept repeating that Dr. Ling’s reported didn’t say anything about convergence, even though it is there in the report.
2020-21 and 2021-22 school years: School psychologist Tonya Blanchard was the only IEP team member with the license credentials to interpret Dr. Ling’s evaluations. During both school years she disagreed with FCPS central office staff and with the head of special education at South County High School. Tonya was overruled by the other members, even though none of them had the expertise or licensing to interpret the evaluations.
2022-23 school year: No member of Student’s IEP teams held a valid license to serve as a school psychologist and address 2020 evaluations.
2020-2023: Assistant Principal Jeremiah Caven served on the IEP team, even though he’s not credentialed in special education or 6-12 education, yet purported to have knowledge of both.
2017-2023: Student’s IEP teams have been led by FCPS office of procedural support and due process staff, which is charged with ensuring compliance. Yet, from former director of DPE Jane Strong to current director of DPE Dawn Schaefer, the noncompliance has continued.
2017-2023: FCPS has blamed Parent for IEP process taking a long time, for being difficult, focused too much on the past, etc.
2020-2022: Office for Civil Rights found FCPS in noncompliance and cited issues Parent had tried to discuss with FCPS for years.
OCR’s 2022 findings against FCPS support that Parent was right for years, yet DPE staff portrayed her as wrong and vilified Parent for insisting on compliance and trying to hold FCPS staff accountable for past and present noncompliance, which is a right of Parent’s.
FCPS prohibited Parent’s and Student’s opportunity to participate in the IEP process when FCPS staff repeatedly made decisions that it was not licensed to make and denied FAPE to student.
South County High School sped head Samantha Tolan repeatedly threatens to stop IEP meetings whenever Parent pushes for an answer. In addition, Samantha consistently tells Parent that Parent’s concerns aren’t on topic and thus won’t be discussed, further prohibiting Parent from engaging in IEP meetings—and Samantha refuses to defer to Tonya Blanchard, the one staff member with the licensing/credentials to interpret evaluations.
4.22.22: FCPS IEP Team refused to listen to the one licensed member of the IEP team: School psychologist Tonya Blanchard. Led, again by DPE staff, FCPS staff refused Student services based on decisions of staff who made diagnosis they were not licensed to make.
4.22.22 to today: FCPS continues to hold IEP meeting that involve staff engaging in non-licensed practice of medicine, school psychology, and other non-licensed and/or non-credentialed activities. Most recently in regard to Student, this happened 2.10.23, when FCPS’s IEP team again diagnosed Student’s needs even though individuals licensed to make such diagnosis were not in the IEP meeting. Parent called FCPS out on this and FCPS insisted the IEP team it chose is duly constituted. FCPS DPE director Dawn Schaefer attended this meeting, too, yet there was no school psychologist, speech pathologist, audiologist, or vision impairment specialist to be found.