Virginia Department of Education
Division of Special Education and Student Services
Office of Dispute Resolution and Administrative Services
P.O. Box 2120
Richmond, Virginia 23218-2120
(804) 225-2013 phone
(804) 786-8520 fax
SPECIAL EDUCATION COMPLAINT
SUBJECT OF COMPLAINT:
(Student) is now age 17, is a student with multiple significant
disabilities (autism, severe speech and language impairment, and
mental retardation) and eligible to receive special education
services in Fairfax County Public Schools (FCPS). At his most recent
eligibility determination of April 15, 2005, he was again found
eligible for continued services as a student with multiple
disabilities.
This complaint specifically references violations of the Individuals
with Disabilities Education Act-Part B and its implementing
regulations, 34 Code of Federal Regulations § 300.600, et. seq. which
set out various responsibilities of the state education agency, in
this case the Virginia Department of Education (VDOE), and the local
educational agency (Fairfax County Public Schools), to ensure that
the due process hearing system is appropriately managed and monitored
and that a hearing officer’s decision is implemented.
Under the Individuals with Disabilities Education Act (IDEA) at 20
U.S.C. §1412(a)(11)(A), state education agencies, such as the VDOE,
bear the ultimate responsibility for ensuring a free appropriate
public education to all children and youth with disabilities,
including (Student) . The IDEA implementing regulations at 34 C.F.R.
§300.600 squarely places the responsibility for the general
supervision and oversight of public agencies, such as the Fairfax
County Public School division, on VDOE for ensuring that the public
agencies comply with the requirements of Part B of the IDEA.
The Code of Federal Regulations at 34C.F.R.§300.510,
states: “Finality of decision; appeal; impartial review. [20 U.S.C.
1415(i)(1)(A)] Finality of decision. A decision made in a hearing
conducted pursuant to §§300.507 or 300.520-300.528 is final, except
that any party involved in the hearing may appeal the decision under
the provision of paragraph (b) of this section [this section allows
for an appeal to the State Education Agency which apparently is not
applicable in Virginia] and §300.512.”
34 C.F.R §300.512, further states: “Civil action. [20 U.S.C. 1415(i)
(2), (i)(3)(A) and 1415(1)] This section outlines the procedures for
a party aggrieved by the findings and the decision under §300.510 to
bring a civil action in any State court or district court;
specifically it sets out at §300.512 (a) General. Any party
aggrieved by the findings and decision made under §§300.507 or
300.520-300.528 who does not have the right to an appeal under
§300.510(b), and any party aggrieved by the findings and decision
under §300.510(b), has the right to bring a civil action with respect
to the complaint presented pursuant to §300.507….and (d) Rule of
construction. Nothing in this part restricts or limits the rights,
procedures, and remedies available under the Constitution, the
Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the
rights of children with disabilities, except that before the filing
of a civil action under these laws seeking relief that is also
available under section 615 of the Act, the procedures under
§§300.507 and §300.510 must be exhausted to the same extent as would
be required had the action been brought under section 615 of the Act.”
The Virginia Administrative Code at 22.1-214 D outlines the parties’
right to appeal a due process hearing decision. The VDOE is
designated as the agency for cooperating with the federal government
in carrying out the provisions of the state special educational
programs and thus is the administrative agency through which
federally appropriated funds for disabled children are disbursed to
the local school districts. The Office of Dispute Resolution and
Administrative Services is the office within the VDOE existing to
coordinate, direct, and monitor a program for the special education
children in Virginia.
While this complaint is being brought under the provisions of the
IDEA, the Virginia regulations, at 8 VAC 20-80-76 (O), also outline
the parties’ right of appeal: “Right of appeal. [COV § 22.1-214; 34
CFR §§ 300.510; 300.512; 300.514:] 1. A decision by the hearing
officer in any hearing, including an expedited hearing, shall be
final and binding unless the decision is appealed by a party in a
state circuit court within one year of the issuance of the decision
or in a federal district court without regard to the amount in
controversy. 3. If the hearing officer’s decision is appealed in
court, implementation of the hearing officer’s order is held in
abeyance except in those cases where the hearing officer has agreed
with the child’s parent or parents that a change in placement is
appropriate in accordance with subsection E of this section.”
The IDEA at 20 U.S.C. §1415(e)(3) provides that during the pendency
of any proceedings conducted pursuant to this section, unless the
State or local educational agency and the parents or guardian
otherwise agree, the child shall remain in the then current
educational placement of such child….
I allege that FCPS violated the regulations cited above by failing to
implement Hearing Officer Michaels’ January 6, 2005 due process
decision in a timely manner.
I also allege that VDOE, specifically Ms. Judith Douglas, VDOE
Director of Dispute Resolution and Administrative Services, was fully
aware that FCPS was not intending to implement the Hearing Officer’s
decision, and she therefore violated the IDEA and the implementing
regulations cited above by failing to take appropriate measures to
ensure that FCPS complied with the requirements of Part B of the IDEA
and to ensure that (Student) was provided a free appropriate public
education.
FACTS
On January 6, 2005, Hearing Officer Franklin Michels rendered his due
process decision concerning (Student). Mr. Michels determined that
the individualized education plans proposed by FCPS for (Student)’s
9th grade (2002/2003), 10th grade (2003/2004), and 11th grade
(2004/2005) school years did not provide (Student) a free appropriate
public education because they were not “appropriate” and they
violated the IDEA. Mr. Michels ordered FCPS to provide (Student) an
appropriate education and he ordered FCPS to provide compensation and
compensatory services for certain educational services we had
obtained privately as part of (Student)’s home-based educational
program.
On February 4, 2005, 29 days after the Hearing Officer’s decision, I
contacted Mr. Patrick Andriano, Coordinator of Due Process Services
of the VDOE Office of Dispute Resolutions and Administrative
Services, by telephone, alerting him to my concerns that FCPS had not
initiated contact with me to comply with Hearing Officer Michels’
orders. I also alerted Mr. Andriano to my concern regarding
(Student)’s stay-put placement. Mr. Andriano advised me that based
on the hearing officer’s decision, he was unable to determine what
the (Student)’s current educational placement was and that he would
have to consult with Ms. Judy Douglas in order to answer that
question.
Mr. Andriano contacted me by telephone a few days later and advised
me that according to Ms. Douglas, the (Student)’s stay-put placement
would be his last agreed upon IEP. I informed Mr. Andriano that that
conclusion was both irrational and illogical—given the fact that (the
Student)’s last agreed upon IEP was his 7th grade, 2000-2001 IEP,
which contained the same program and placement and level of services
that the hearing officer had found to have denied (Student) a FAPE
for his most recent—9th, 10th, and 11th grade years. It is entirely
unreasonable that the VDOE would suggest that (Student)’s stay-put
placement was a placement that, based on a hearing officer’s
conclusions, had denied him a FAPE. Mr. Adriano understood my
concerns and position but said he was only in a position to reiterate
the VDOE position provided by Ms. Douglas. He would not discuss that
issue anymore.
At approximately 3:00 p.m. on February 18, 2005, I spoke with Ms.
Teresa Johnson, FCPS Monitoring and Compliance Specialist, who
telephoned me to alert me that she was planning to fax a document to
me at my office. Ms. Johnson faxed a one-page FCPS implementation
plan, a February 18, 2005 letter signed by Mr. Martin Humbertson,
FCPS Coordinator of Monitoring and Compliance, and a February 14,
2005 letter signed by Ms. Marilyn Cahuantzi, FCPS Pyramid Resource
Specialist. The documents were received by me at 3:15 p.m.
At 3:41 p.m., February 18, 2005 I confirmed via email to Ms. Johnson
that I had received her fax. I advised her that the original of the
February 14, 2005 faxed letter from Ms. Cahuantzi had never been
received by me and that this was the first time I had seen her
letter. Mr. Andriano was also copied on my email to Ms. Johnson,
thereby alerting him to the fact that I had never received Ms.
Cahuantzi’s original February 14th letter and that I was seeing it
for the first time on February 18.
On February 22, 2005, four calendar days after receiving the FCPS
documents late afternoon in February 18 (with the four calendar days
including a weekend and a Federal holiday and therefore representing
only one business day later), I sent to Mr. Andriano, via facsimile,
a letter documenting the concerns I had expressed when we spoke on
February 4, 2005, and my additional concerns regarding the February
18 FCPS faxed documents.
On March 2, 2005, Ms. Douglas responded, on behalf of Mr. Andriano,
to my February 22 letter advising me that she had placed Mr. Michels’
decision and the implementation of his orders in abeyance.
To be eligible for federal funding, the VDOE and the FCPS are
required by the
IDEA to comply with federal guidelines and regulations established to
ensure the availability of a FAPE for all disabled children. The
IDEA clearly establishes that the VDOE is the entity of State
government that must exercise supervision over all education programs
for children with disabilities administered within the State. This
statutory provision assigns the VDOE the ultimate responsibility and
authority under Federal law for ensuring the requirements of Part B
of the IDEA are met as a condition of eligibility for Virginia’s
receipt of federal IDEA funds. The VDOE’s ultimate responsibility is
to ensure that every disabled child is provided a FAPE and to step in
and provide that FAPE when the LEA refuses to do so or cannot do so.
Although FCPS is charged with the responsibility of creating and
implementing an appropriate IEP for (the Student) , the VDOE retains
the ultimate responsibility for providing (the Student) with an
appropriate education. The plain language in the IDEA, as well as
relevant court decisions, clearly express that the VDOE’s
responsibility goes well beyond the mere writing of regulations and
procedures and its practice of just sitting by waiting for the phone
to ring. It requires a proactive enforcement of the regulations. In
(the Student) ’s case, however, the VDOE has chosen to
consistently “sit on the sidelines” while it knowingly allows FCPS to
continue to deny (the Student) a FAPE. Moreover, the VDOE has
supported both decisions made by FCPS, i.e., (1) to not implement the
hearing officer’s decision and (2) to not appeal the decision in
State of federal district court. VDOE’s tacit approval for FCPS’
intentional conduct and blatant disregard for the law perpetuates the
continued denial of FAPE to (the Student) and makes, what one might
consider to be, a mockery of the IDEA due process system.
Additionally, the VDOE has continued to act indifferently to these
purposeful actions by FCPS and FCPS’ deliberate failure to provide
(the Student) with a FAPE. Furthermore, the VODE itself has also
acted indifferently in this matter due to its own failure to uphold
its requirements under the IDEA and the implementing regulations to
ensure (the Student) receives a FAPE. These continuing, deliberate
acts of indifference are not only in direct violation of the IDEA,
but they are also a continuing violation under Section 504 of the
Rehabilitation Act of 1974 (Section 504). VDOE has, and continues to
have, the responsibility to provide a FAPE for (the Student), and
particularly so in this instance, since it has permitted FCPS to
forego its duty to assure that the IDEA’s substantive requirements
are implemented.
The IDEA is clear in offering LEAs a choice—either implement a
hearing officer’s decision or appeal the decision. Nothing in state
regulations should be, or can be, applied or interpreted in a way
that is contradictory to these provisions in federal law, and in this
case the IDEA and its implementing regulations. In the case of
inconsistency between the IDEA and the Virginia Regulations, there is
no question that the IDEA and its regulations are the supreme
authority.
FCPS did not implement the hearing officer’s decision as required by
the IDEA and its implementing regulations because it did not provide,
as unambiguously ordered by the hearing officer, an appropriate
education for (the Student) which was to include reliable and
intensive one-on-one instruction in (the Student) `s academic
studies. FCPS did not provide (the Student) ’s parents the relief
ordered by the hearing officer in the form of compensation for
private sign language instruction and private speech and language
instruction nor did FCPS provide the additional compensatory speech
and language services ordered. In fact, however, FCPS has proposed
the exact same IEP program and placement for (the Student) for the
2005-2006 school year (12th grade) as it has for the last eight
years, a program and placement which the hearing officer has
conclusively determined to be inappropriate. (the Student)’s most
recent IEP was completed on April 15, 2005. If FCPS refuses to offer
(the Student) appropriate educational services that are calculated
to provide him with educational benefit, FCPS is continuing to deny
him a FAPE. IDEA requires that participating states, including
Virginia, have “in effect a policy that assures all children with
disabilities the right to a FAPE.” It is time the VDOE acknowledges
the responsibilities it has agreed to uphold in accepting federal
monies under the IDEA and steps up to the plate to either require
FCPS to comply with the Act to provide Matthew a FAPE or to assume
the responsibility itself to provide (the Student) with a FAPE.
It has now been over 5 months since Hearing Officer Michels’
decision. During this time, FCPS has done nothing but “threaten” to
appeal the Hearing Officer’s decision. FCPS has not paid what it was
ordered to pay to (the Student) and his family. FCPS has not
provided the compensatory services it was ordered to provide to (the
Student). FCPS has not provided, or even proposed, an appropriate
educational program and placement, with the necessary related
services, to provide (the Student) a FAPE. We are, and continue to
be, so financially burdened by FCPS’ noncompliance with the law and
VDOE’s failure to correct the situation that we may never be able to
become financially sound again. We continue to pay for (the
Student)’s tuition, related services, and the additional attorney
fees that have resulted from FCPS’ noncompliance with the Hearing
Officer’s decision and its continued noncompliance with the Federal
regulations. The VDOE has consistently failed to support (the
Student), all the while knowing that FCPS has violated and continues
to violate the IDEA. Despite the Hearing Officer’s finding that FCPS
denied (the Student) a FAPE and thus had violated the law for at
least the last three years, the non-implementation of that
affirmative decision has resulted in a hollow victory for (the
Student) , and serious and ever-mounting financial burdens for (the
Student) ’s family.
To resolve this complaint, I request that the VDOE enforce the
hearing officer’s decision through FCPS’ immediate implementation of
the hearing officer’s orders. In accordance with its complaint
procedures, I request the VDOE, in accordance with 8 VAC 20-80-78,
including but not limited to paragraph C.5., address FCPS’ denial of
providing appropriate services to (the Student), including but not
limited to, addressing the remediation of the denial of appropriate
special education services and the necessary related service (the
Student) requires in order to have meaningful educational benefit by
effecting the Hearing Officer’s orders in awarding those
reimbursements and services he ordered on January 6, 2005, including,
compensatory services, an IEP that offers (the Student) a FAPE, and
any other corrective actions deemed appropriate to meet (the
Student) ’s educational and related service needs.
Please call me at , if you have any questions or if I
can provide your office with additional documentation of the facts
laid out in this complaint to assist in your investigation.
In filing this complaint with your office, I waive any privacy rights
and specifically request that you make this complaint available,
without redaction, to anyone who might request a copy of it in the
future.
Sincerely,
The parent