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'A regular kid': State complaint accuses ACPS of breaking special ed law

A Jack Jouett Middle School student started cutting himself last school year to cope with the stress of being sent to detention 33 times in less than three months.

In a due process complaint filed with the state Jan. 31, Daisy and Geiner Rojas say the Albemarle County school division didn’t do enough to help their son, who is diagnosed with depression and anxiety. School division officials dispute that account, in emails and documents, contending they did what they could for him, based on what they knew at the time, and that his detentions were related to disruptive behavior.

The family seeks reimbursement for medical appointments, therapy and tutoring their son has received and asks that he be given educational opportunities to make up for what he missed as a result of what they say is the division’s failure to provide him with an education.

“Sending a kid to detention 33 times is not teaching him,” Daisy Rojas, said in an interview.

The 13-year-old, who is identified in the complaint by his initials, M.R., was diagnosed with anxiety and depression in fifth grade. Since he started attending Jack Jouett, he has fallen behind in his classes and doesn’t feel ready for high school. His grades and test scores show marginal improvement since sixth grade, according to documents provided to the family and shared with The Daily Progress. After winter break, he didn’t return to Jack Jouett out of concern for his mental well-being.

In the complaint, filed with the Virginia Department of Education, the family outlines the nearly three-year saga in which the family repeatedly asked for their son to be evaluated for special education services and for the classroom removals to end. They say the school’s actions denied him a “free and appropriate public education” — the federal legal standard of special education.

Rojas has three binders of documents related to her son’s experience in the county public schools and has spent years fighting to make sure he gets what he needs to be successful in school. The complaint draws on records she obtained from the division.

“He just wants to be a regular kid,” she said. “He doesn’t feel like he is different.”

Yet, in the complaint, the family argues that teachers subjected M.R. to seemingly arbitrary discipline, and that their son has observed that he is singled out for actions that are overlooked in other students.

“The teachers don’t want me in their class,” he said in December.

He said he was removed from class — instances that are not always documented — more than 80 times over the course of two school years for a range of infractions, including not having a computer charger; being tardy; not completing or turning in homework assignments; forgetting a pencil; getting up in the middle of class; refusing to do work; and talking to friends, according to the family’s documents.

The eighth-grader said he doesn’t participate in assignments because he doesn’t think he can catch up. Since halfway through the sixth grade, “I’ve known I can’t win,” he said.

In the fall of his seventh-grade year, M.R. started hurting himself and hid the small incisions by wearing long sleeves and pants. He now has about 50 scars along his arms and wrists. After the family found out about the cutting and alerted school officials, the division decided to evaluate M.R. for special education services.

In the documents provided by the family, the school division said it disagrees with the family’s timeline and version of events, and says that M.R. was not being disciplined because of his disability, which would be a violation of federal and state law.

According to the complaint, Kevin Kirst, director of special education and student services for the division, said in a letter to the family that their son had made “the unfortunate choice” and that some of the removals were a part of a “reset” rather than for detention. A reset refers to when a student is sent to the main office as a consequence for a minor disciplinary infraction, per the complaint.

In a statement Monday, schools spokesman Phil Giaramita said the division is preparing for the hearing, but otherwise declined to comment on the case.

“Consistent with state and federal laws and our own policy and out of respect for the privacy rights of any family or student, we do not publicly discuss any cases or allegations that involve students,” he said.

[TIMELINE: The path to M.R.’s complaint.]

After a child is identified as possibly needing special education services, federal law requires an evaluation to determine eligibility. If the child is found eligible, school staff and parents meet to create an Individualized Education Plan, which outlines specific goals, services and accommodations and placement tailored to the student.

But if a family and school system disagree about the IEP or other issues related to special education services, then the next step is to request a due process hearing. A resolution hearing must be held within 15 days of the complaint’s filing. If no resolution is reached, the complaint will go to circuit court, Rojas said.

In the last five years, three other people have filed due process complaints against the county schools, according to documents obtained through a Freedom of Information Act request.

Grace Kim, a Fairfax-based special education attorney, is representing the Rojas family.

“He’s a student with anxiety, depression and a learning disability whose needs should easily be met,” Kim said in an interview. “ … It’s the minimum requirements of the law that we’re talking about. This is not anything Daisy wants to do, but he needs someone to fight on his behalf.”

The intervention planIn the context of special education, an emotional and behavioral disability is loosely defined as any type of emotional dysregulation or emotional issue that interferes with learning and results in untypical classroom behavior, Kirst said.

Kirst spoke with The Progress before the complaint was filed and discussed generally how the division works with students who have an emotional or behavioral disability.

“The premise is looking at a child that is dysregulated as it’s a skill deficit,” he said. “It’s not that they are bad or mean. It’s none of that. It’s that they don’t know how to get their needs met in a way that respects those around them.”

Through a problem-solving approach, Kirst said, division staffers work to coach students on their behavior and to build relationships with them.

Kirst highlighted the division’s intensive special education program known as B-Base, which provides a separate classroom for students during the day and coaching for students on how to better regulate themselves.

B-Base is in most schools in the division, Kirst said. The Rojas family said it was never specifically presented as an option.

Jack Jouett does not have B-Base, but Giaramita said the division’s funding request for next year includes money to establish the program at the school. That decision was unrelated to the Rojas’ case but based on the annual needs assessment conducted by the special education department, Giaramita said.

The division also uses behavior assessments and intervention plans, which are not reserved solely for special education students, to help those with behavior challenges. The county schools proposed conducting a behavior assessment and drafting a plan for M.R. last November as part of his IEP.

According to the complaint, school systems are required to draft an intervention plan “when the behaviors significantly interfere with any educational benefits.”

In November, the Rojas family, Kirst and other officials met to discuss a new IEP for the eighth-grader, a new version of the legally binding document that would focus more explicitly on his emotional disorders. The family partially agreed to the IEP, which was never implemented. Ongoing disputes about how it addressed M.R.’s needs eventually fueled part of the state complaint.

Division staff recommended nine accommodations, including developing a behavior intervention plan; breaking down assignments into small parts; activity breaks in the classroom; and a small-group or individual setting for assessments.

Additionally, they proposed to give M.R. a space where he could “work through behaviors associated with his lack of success in the classroom,” and he would work with a staff member and come up with “a plan that implements this place in a preventive way to address challenges he is facing in the classroom.” Goals in the IEP include increasing the number of times he completes assignments and positively engages in classroom activities.

The family, in the complaint, takes issue with the accommodations and goals, arguing they were not appropriate and failed to include recommendations from an independent evaluation and the family’s therapist.

“Two of the three goals place nearly 100% of the responsibility on M.R. to manage his own behaviors and restructure his learning habits,” the complaint states. “ … A goal that is met by the mere development of a plan does not provide a benefit to M.R.”

The intervention teamAt every county school, an intervention team made up of administrators, teachers and other school personnel serves as the conduit for any special-education referral, Kirst said. That team also is tasked with reviewing school data, identifying students who need extra help and then crafting a plan for those students.

Those intervention teams break up the division of 14,000 students by school, which Kirst said makes the task more manageable and helps to make sure students don’t fall through the cracks. In fact, he said, the division is identifying children who don’t necessarily need special education services.

“Those referrals are coming in,” he said. “It’s not like there are crickets and we are missing kids.”

The Jack Jouett intervention team met with the family in September 2017 after teachers noted concerns in M.R.’s academic performance, according to the complaint. At the time, the team said there wasn’t enough data to support accommodations but recognized he needed additional support.

The team met again in January 2019 to discuss M.R. and decided to move forward with an evaluation for special education services, according to the complaint.

“While waiting for eligibility evaluations to be completed, M.R.’s grades continue to suffer as his emotional state deteriorates and, by March 18, 2019, he has F’s in math and language arts,” the complaint states.

M.R. eventually was found eligible for special education in March 2019, and the division classified him as a student with attention deficit hyperactivity disorder. His parents disputed that finding, as the boy had never been diagnosed as having ADHD.

In November, after months of back-and-forth and the independent evaluation, the parents, specialists and school agreed: M.R. was reclassified as a child with an emotional disability, according to the complaint and his draft IEP. Ideally, when a student’s support team agrees on a diagnosis, an approach can be agreed upon.

The education pathMost of M.R.’s learning during middle school has been outside the classroom, according to him and his parents.

He builds computers and edits videos. In his spare time, he races dirt bikes. If school focused more on his interests and he could work with his friends, he might be more interested in doing the work, he said.

He feels like his teachers don’t know how to help him. In fact, one told him just that, he said.

“It’s like they are testing on you,” he said.

He said that in seventh grade his teachers seemed more interested in finding a way to help him, but that wasn’t the case this school year.

Emails among teachers and administrators at Jack Jouett show them grappling with how to deal with him, according to documents obtained by the family.

“I’m at a loss with [M.R.],” one teacher wrote in an email to then-Principal Kathryn Baylor, adding that he was refusing to do class assignments.

After he was deemed eligible for special education, he continued to be removed from the classroom and was suspended in-school twice in November that year, according to the complaint.

“What positive outcome are they looking for?” Rojas said of the repeated removals.

M.R.’s education now consists of tutoring after he was approved to receive homebound instruction, but the family says the division has struggled to provide an approved tutor. M.R. met with a division-supplied tutor for the first time this week.

Rojas and her son have seen improvements when he has worked with a tutor.

“I didn’t know if I was learning or not [during tutoring], but I was doing the work and I could do that,” the boy said.

As the family seeks reimbursement and pursues the state complaint, they say they simply wish for the last three years back.

“Three years of instruction have passed like water, like a bucket with a hole in it,” Rojas said.


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