UPDATE: VDOE Opens Systemic Complaint on FCPS: Denial of FAPE to Preschool, Honors, Foreign Language, and Day School Students

June 1, 2023: Article first published.

July 13, 2023: Article updated to include additional information Complainant submitted to VDOE; FCPS’s response to Complaint’s state complaint; and the timeline extension letter VDOE issued itself July 10, 2023, one day before VDOE’s Letter of Findings was due. VDOE set September 15, 2023, as the new due date.

September 18, 2023: Article updated to include VDOE’s second timeline extension letter, in which it changed its timeline from September 15 to October 31, 2023, as well as additional evidence provided to FCPS by Complainant.

May 23, 2023, Virginia Department of Education opened another systemic complaint investigation into Fairfax County Public Schools, in response to a complaint filed May 12, 2023.

The complaint alleges FCPS is at fault for systemic failures to provide FAPE, to include but not limited to failure to address the unique academic, behavioral and functional needs of its students; failures to appropriately place students; and failures to provide services to students who elect to enroll in Honors classes.

Same Story, Different Year: Virginia Department of Education’s “Monitoring” Fails to Identify and Address Noncompliance, Fairfax County Public Schools Withholds Information

In 2020, Virginia Department of Education failed to stop the noncompliance occurring in Fairfax County Public Schools (FCPS), and in other districts across the state. 

In 2023, the story remains the same.

U.S. Department of Education Releases Updated Policy Guidance to Ensure Access to Rights Guaranteed to Children Under IDEA

uly 24, 2023, U.S. Dept. of Education’s (USDOE) Office of Special Education Programs (OSEP) released updated policy guidance “to ensure and strengthen the rights and protections guaranteed to children with disabilities and their families under the Individuals with Disabilities Education Act (IDEA).” The guidance took immediate effect upon release.

According to OSEP, “The guidance and accompanying Dear Colleague Letter address the IDEA’s “general supervision” requirement, which necessitates states monitor local educational agencies (LEAs) as required by IDEA Part B, and early intervention service (EIS) programs and providers as required by IDEA Part C to ensure children with disabilities and their families access their rights under IDEA.”

This guidance is significant in that it focuses on general supervisory responsibilities. Refusing to address noncompliance outside the typical dispute resolution channels of mediation, state complaints, and/or due process hearings, has long been a problem for states like Virginia, as one example.

Virginia Department of Education Halts State Complaints Because Parents Used Google Drive

The Virginia Department of Education (VDOE) halted state complaints filed by parents in Chesterfield and Page Counties because the parents used Google Drive to submit their evidence.

In a Letter of Inquiry (LOI) dated June 28, 2023, VDOE initial advised the Page County parent:

“While the email indicates that Parent properly attached a sufficient state complaint, the Commonwealth of Virginia no longer partners with Google and cannot access/open any Google documents. Please resubmit the complaint to our office using another format such as OneDrive, which is supported by Microsoft Office. . . . This office cannot move forward to investigate Parent’s concerns until the above-noted deficiencies are addressed. If appropriate, the complaint may be resubmitted to this office for action. All resubmitted complaints will be treated as new complaints and are subject to review.”

State complaints have a one-year statute of limitations. According to the parent, having to refile would put his complaint outside the one-year timeline, which means it would be denied as time barred upon resubmission—just because VDOE refused to access Google Drive.

Fairfax County Public Schools “Expert” Determines Lindamood Bell Not Appropriate for Student with Dyslexia, Because Lindamood Bell’s Site Has Pictures of Young Children On It

Virginia Hearing Officer Rhonda Mitchell determined the program Lindamood Bell is not appropriate for a student who has Dyslexia, after Fairfax County Public Schools (FCPS) “experts” made curious statements about the instruction and Lindamood Bell’s site and staff.

Jugnu Agrawal, program manager of FCPS’s special education curriculum, and one of the FCPS “experts” who testified in front of HO Mitchell, said Lindamood Bell isn’t appropriate because, “if you go and look at the pictures on their website and everything, it is specifically for elementary.”

Fairfax County Public Schools Found at Fault for Systemic Noncompliance: Local Administrative Review/Procedural Safeguards

June 6, 2023: Article Published.

UPDATE: July 17, 2023, article updated to include Complainant’s appeal to a portion of VDOE’s Letter of Findings, as well as documents FCPS was required to address in response to the Corrective Action Plan (CAP) required by VDOE. July 12, 2023, in an email to Complainant, VDOE provided Complainant FCPS’s CAP Letter to Parents and FCPS’s Student Rights & Responsibilities Manual Revisions, as well as CAP Update Letter from VDOE. In its email to Complainant, VDOE said, “Attached are the documents which were included as part of FCPS’ Corrective Action. The only portion not included with this email is a list of the students (5) who were the subject of the administrative review. This list is not included as it contains personally identifiable information. The Corrective Action Update letter provided to FCPS is also attached.” In a county the size of FCPS, it is surprising that just five students “were the subject of the administrative review.”

June 6, 2023, Virginia Department of Education found Fairfax County Public Schools at fault for systemic noncompliance regarding FCPS’s local administrative review process.

The complaint on which VDOE’s findings are based was filed April 7, 2023, and alleges FCPS for years misled parents about their procedural safeguards, by leading them to believe a local administrative review within FCPS, done by a hearing officer that is an employee of FCPS, is in compliance with IDEA and implementing state regulations. Hence, parents have taken this local administrative review route, at which there is no impartial hearing officer and no hearing in compliance with IDEA or implementing state regs.

In addition, the complaint alleges FCPS believes it can operate outside of federal and implementing state regs by forwarding an appeal option that 1) is not in compliance with IDEA, Sec 504, or VAC, and 2) by its own existence in FCPS’s student rights & responsibility manual, and on the FCPS site, falsely lead parents to believe that they are accessing procedural safeguards under federal and state implementing regs.

FCPS Knows Its IEPs Are Noncompliant, Leads Hearing Officer, Virginia Dept. of Ed., Staff, and Parents to Believe Otherwise

Dawn Schaefer, director of Fairfax County Public Schools’ (FCPS) Office of Special Education Procedural Support and Michelle Boyd, FCPS’s former assistant superintendent for the Department of Special Services (from 2020 through July 2023) and now assistant superintendent of region six, have a history of advising parents, staff, Virginia Department of Education (VDOE), and/or Virginia hearing officers that FCPS’s IEPs are in compliance with IDEA and implementing state regulations—even though VDOE’s state complaint letters of finding and its 2022 monitoring report, and the two-year special education audit FCPS commissioned itself, indicate otherwise.

September 14, 2022, Michelle and Dawn admitted FCPS’s IEPs are in noncompliance with IDEA and state regulations, that FCPS was changing the PLOP page in the IEP to a Present Level of Academic Achievement and Functional Performance (PLAAFP) page, and moving meeting notes to a different section. This contradicts Dawn’s 2020 testimony to Due Process Hearing Officer Rhonda Mitchell.

Office for Civil Rights Opens Investigation Into Virginia Department of Education; Did VDOE’s COVID-19 Guidance Lead School Divisions to Deny FAPE to Students Who Have Disabilities?

June 7 and June 9, 2023, Office for Civil Rights issued letters for cases 11-23-4044 and 11-23-4004 to Virginia Department of Education and stated OCR was opening the following legal issues for investigation:

June 7, 2003, Case No. 11-23-4044:

“Complainant alleged that VDOE discriminated against students with disabilities by failing to provide an audio the accommodation for a Standard of Learning (SOL) reading and writing field test assessment for the 2022-2023 school year.”

June 9, 2003, Case No. 11-23-4004:

“Whether the VDOE’s guidance regarding the provision of special education and related services during the COVID-19 pandemic led school divisions to deny FAPE to students with disabilities.”