Fairfax County Pay-to-Play, 5-Days-a-Week, In-Person Education Model Generates Revenue for County; Sparks Civil Rights Investigation

Payment and availability are not prerequisites for a free appropriate public education (FAPE).

January 2021, the U.S. Department of Education (USDOE) Office of Civil Rights (OCR) launched an investigation into Fairfax County Public Schools’ (FCPS) practices of refusing to provide in-person instruction to students with disabilities, while at the same time opening “its schools to in-person child-care for general education students.” January 12, 2021, USDOE OCR submitted a letter to Superintendent Scott Brabrand, to announce the launch of the investigation.

However, the issue is about more than child care.

It is about the fact that Fairfax County generated revenue by charging a fee in return for students being able to attend in-person school, for a full five days a week—while at the same time denying the majority of FCPS students the same opportunity.

August 14, 2020, Fairfax County, in partnership with FCPS, announced the launch of the Supporting Return to School (SRS), which would offer five-days-a-week, in-person education to students via a pay-to-play model.

This pay-to-play model is in place for the entire 2020-21 school year, allowing some students to attend school in-person five days a week, while the majority of FCPS students have—until recently—been relegated to all virtual learning.

An “SRS Targeted Engagement” document that is dated August 17, 2020, and which was obtained via a FOIA request, states the purpose and goal of the SRS program to be:

To use intentional engagement practices to ensure students in historically underrepresented communities are purposefully provided access to school-based childcare during virtual learning. The plan will prioritize the use of outreach and engagement resources in underrepresented communities, specifically for families with students who are adversely impacted by the achievement gap the most.

The goal is equitable engagement, increased awareness of childcare during virtual learning, and minimized adverse effects low-wealth communities, communities of color, and students with special education needs may experience.

Sounds like a well-intentioned program, until you get to the fact that 1) Fairfax County is generating revenue from a program that is supposed to serve the underrepresented and 2) is denying the same in-person, five-days-a-week opportunity to special education students who are among the very population included within its purpose and goal for the program.

After drilling into documentation created in the months following the launch, it is clear that 1) SRS was replacing the school aged child care (SACC) and 2) SRS was offsetting some of the SACC revenue losses, to include collecting an administrative fee. In addition, although the county is funding SRS, the reality remains that FCPS is a partner and FCPS students received educational opportunities that weren’t offered to all students with special education needs.

In response to a FOIA request, Fairfax County made the following statements about the SRS program:

Response

Since the Fairfax County Public Schools (FCPS) are currently not open to in-person learning and thus the School Age Child Care (SACC) program is currently not operating, flexibility from the SACC budget is available to support the Supporting Return to School (SRS) program. This includes costs associated with Personnel Services and Operating Expenses. It should be noted that the SRS program is a partnership between the County and FCPS; however, the program is funded and operated by Fairfax County.

The SRS program is a fee-based program with reduced fees available to those families who meet income eligibility requirements. The fee is based on the total staffing hours needed to implement the Centers for Disease Control and Prevention (CDC) social distancing guidelines as well as costs associated with operating expenses and food. Additionally, an administrative fee based on the County’s most recently approved federal indirect cost rate has been included. All fees paid in support of the SRS program are recorded as revenue in the County’s General Fund budget.

The County contributes $1.0 million to offset school operating and overhead costs associated with SACC Centers. This contribution is still being made and will offset school operating and overhead costs associated with the SRS program and/or SACC costs should FCPS return to in-person learning. The County bills the City of Fairfax annually for the cost of SACC services provided to city residents eligible for the sliding fee scale. Bills are sent at the end of each fiscal year based on enrollment data and revenue collected at the sites. It is anticipated that this process will continue for the SRS program and will be included in the annual bill for FY 2021.

Why is this a Problem?

According to USDOE OCR’s January 12, 2021, letter:

OCR enforces Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation at 34 C.F.R. Part 104, which prohibits discrimination on the basis of disability. OCR also enforces Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. § 12132, and its implementing regulation at 28 C.F.R. Part 35. Under Title II, OCR has jurisdiction over complaints alleging discrimination on the basis of disability that are filed against public entities, including public elementary and secondary educational institutions.

What exactly does this mean?

Children with special education needs are afforded a right to a free appropriate public education (FAPE). The SRS program is open to students who have special education needs, which means that the SRS program stripped the “Free” out of FAPE for the students who have special education needs, who are attending this program—as well as any whose parents might have wanted to enroll them in the program.

The SRS program has limited slots available, so in addition to removing the “Free” in FAPE, the SRS program resulted in “Appropriate” and “Public Education” being removed from FAPE, too. Availability and Payment are not dictators. They have no business being associated with FAPE.

Also worrisome: It seems dozens (perhaps hundreds?) of staff members countywide were aware of, and/or involved with, the program—and yet it moved forward.

The Timeline

July 13, 2020, Virginia Hearing Officer Rhonda Mitchell stated that some school systems had allowed children with IEPs and special education to go back to school early and asked Fairfax County Public Schools (FCPS) Due Process Coordinator Dawn Schaefer about FCPS’ plans. Dawn responded:

“Not at this time. At this point parents have two choices. They can choose to have their children be educated virtually this coming school year, or they can have their children go to school two days a week for two full days. Those are the current choices. All parents, and actually all staff members, have to make their requests by Wednesday.”

A month later, Chairman Jeff McKay’s weekly newsletter announced the launch of the Supporting Return to School (SRS) Program, in partnership with FCPS, which would offer five-days-a-week, in-person education to students via pay-to-play model. Although Dawn Schaefer said in-person was a no-go for special education just a month before, somehow Fairfax County and FCPS got together a full program, identified locations, developed brochures and online presentations, and scheduled media outreach. From McKay’s newsletter:

The Board of Supervisors is committed to supporting FCPS in their decision to begin the year virtually. One way we are doing so is by launching a new program with a SACC component called Supporting Return to School. With this program we hope to partially fill the need for Fairfax County families regarding child care and providing safe education environment for the kids who need it. . . .

An adjusting sliding fee scale will be offered.

August 13, 2020, per the SRS Toolkit, Chairman McKay made the following statements on WJLA ABC News 7:

• “I’ve heard literally from hundreds of parents who, like me, support the school division’s decision to do virtual learning, but also are very concerned about how they’re going to juggle that with their own jobs when we get to September.”

• “We’ve always considered this not to be just a school problem. This is a community problem that will take the schools and the county working together to solve.”

• “What our Board of Supervisors has been clear on is that the county has an important role to play in narrowing the achievement gap and helping our working families to be able to go back to work without having to be concerned about not working, not being able to pay the bills because they have to take care of and help their kids get logged on and learn during the day.”

• “This is not going to solve everyone’s problems, this is not going to be the great equalizer, but I think it is going to be a tremendous help to families in need in Fairfax County.â€

• “We’re talking about a much smaller population of children, we’re talking about being able to spread out in multiple rooms in school buildings. We’re talking about protocols for checking temperatures and interviewing everyone before they come in the building.”

• “It’s really designed to help kids with the greatest needs. So we’ve begun outreach for at-risk youth, we’re working with our schools. We have a database of children whose families receive free and reduced price lunches already, and we’re reaching out to all of them to get an idea of whether they would be interested in enrolling in this program.”

• “We know that our at-risk children have greater challenges with internet connectivity, and may not have the kind of support structure so what we’re attempting to do in this program is not duplicate any of the online learning, but frankly have staff there to make sure kids are online and have the technical support that they need.”

They Knew and Allowed SRS to Launch

The launch of the program was announced on numerous Fairfax County sites, as well as numerous county-official newsletters, which indicates that a large number of individuals were aware of and in support of the SRS program.

August 21, 2020: Kathy Smith announced the SRS program in her “Sull-E Newsletter“.

It appears on the Board of Supervisor’s chairman, Lake Braddock, Dranesville, and Mount Vernon sites, too.

Fairfax County Neighborhood and Community Services announcement features a headline that states “Fairfax County’s New ‘Supporting Return to School’ (SRS) Program Bolsters Virtual Learning.” The following is included in the release:

“Supporting Return to School (SRS) is a new Fairfax County program developed in response to the COVID-19 pandemic and this year’s virtual return to school. The program will provide full-day on-site programming for children in Kindergarten through sixth grade, Monday through Friday, 7:30 a.m. – 6 p.m. The SRS program reflects the County’s and Fairfax County Public Schools‘ (FCPS) joint commitment to One Fairfax, and to ensuring that all families have equitable access to the services they need to support children’s virtual learning.

“SRS will provide support for children’s active and engaged learning during the FCPS virtual academic day and promote children’s social, emotional and physical development. In addition to participating in distance learning, children will have opportunities to explore, engage, relax, and enjoy activities that follow the SRS 2020-21 program curriculum, The Great Outdoors: Road Trips Through the Americas. What a perfect time for a virtual journey and to spend real time outdoors!

“The SRS program, located in 37 Fairfax County Public Schools, will serve children of families residing in Fairfax County or the City of Fairfax. A sliding fee scale will be available for income eligible families. Each classroom will have a group of no more than 10 children who will stay together each day, along with consistent staff to support their online learning and in-person connections. Current CDC health and safety guidelines will be implemented.

“Enrollment for the SRS program begins August 24, 2020. Space is limited. Additional information on fees and enrollment, including an online registration option, will be available soon at www.fairfaxcounty.gov/OFC or you may call 703-449-8989.”  

September 16, 2020, Fairfax County Executive Bryan J. Hill submitted a memorandum focused on the FY 2020 Carryover Review Update. The memorandum cites lost revenue due to the school-age child care (SACC) and the role SRS would take in lieu of SACC.

School-Age Child Care

The School-Age Child Care (SACC) program did not operate during the summer months, and SACC centers continue to be closed due to the school year starting virtually. As a result, the County has not collected any SACC fee revenue so far in FY 2021. As a comparison, the County had collected $6.5 million for the first two months of FY 2020.

In response to the COVID-19 pandemic and this year’s virtual return to school, the Office for Children in the Department of Neighborhood and Community Services is providing Supporting Return to School (SRS), a full-day program supporting virtual learning during the academic day, with a before- and after-school care component. SRS is offered at 37 Fairfax County Public Schools, including 35 elementary schools and the Key and Kilmer Centers. A sliding fee scale is provided for income eligible families. The program fees are billed monthly and range from $1,472 per child for a full-paying household at the top of the fee scale to $80 at the bottom of the fee scale. It is estimated that the program will generate $1.0 million in revenue per month.

September 17, 2020, Virginia First Lady Pamela Northam visited Fairfax County. During her visit, she “visited Hutchison Elementary School in Herndon, where she participated in the Fairfax County Public Schools’ Grab & Go food distribution and enjoyed a virtual tour through Fairfax County’s Supporting Return to School (SRS) program.”

October 2020, FCPS staff began expressing concern about space being taken up by the SRS program, and about needing that space for incoming students.

In her response to staff, Vicki Garner, Coordinator III, Community Facilities Use, Fairfax County Public Schools, confirmed FCPS’ heavy involvement in the program and that “SRS will remain as the standard instead of SACC at this time and for the foreseeable future”, in addition to addressing staff concerns:

FCPS Community Use has been asked to assist in the logistical management of the SRS program. Since this program is starting its 3rd month, there has been several changes that has occurred in our schools. More staff has returned, gradual-phased approach to provide in-person instruction, and the space needs of an active building.

SRS will remain as the standard instead of SACC at this time and for the foreseeable future. The needs of SRS are the same; 6 rooms, one isolation room, and the SACC room(s). Please review your current usage classroom
assignments for SRS . Some might be utilizing more than the 6 classrooms+ and will have to reduce to meet the original needs of SRS. The 6 rooms +isolation +SACC classrooms must remain.

At some of our SRS facilities, the SRS current classrooms are located in the K-1 classrooms. With the anticipation of a phased in return beginning with lower grades we are asking for assistance in identifying other areas of your building where the SRS classrooms can be accommodated such as the 4-6 grade classrooms. It is understood by the SRS reps the need for these moves and the differences of in room amenities such as sinks. The objective is to try to keep the SRS classrooms as close together as possible. Please work with your SRS team at your facility to plan and implement your moves to allow for the necessary moving of equipment or furniture.

I am here to assist in any way that Community Use can while understanding that every part of this school year is anything but ‘normal’. SRS is providing a huge service to our communities and is valued by FCPS leadership and Fairfax County Board of Supervisors.

Even though Community Use has been brought back in to the process for the logistical support, we have been a part of this program from the beginning. I would like to ‘thank you’ for your dedication to SRS, the impact that this service provides to our communities, and your unwavering support of FCPS students.

Additional Information

Traditional SACC is open for the Wednesday before Thanksgiving and over the Winter Break. SRS will continue this coverage. Custodian coverage will be at an OT rate and will be reimbursed by SRS.

November 16, 2020, Fairfax County Executive Bryan J. Hill submitted a memorandum focused on the FY 2021 Mid-Year Review. In it, he states that the SRS program replaced the SACC program, that the SRS program is generating revenue, and that Fairfax is seeing savings related to the SACC program being closed:

As stated earlier, revenues are recommended to be reduced by $14.99 million as part of this package, although it should be noted that the County’s conservative posture when building the FY 2021 budget has helped avoid more dramatic revenue reductions at Mid-Year. However, it is important to note that the County’s annual fall revenue review typically identifies additional revenue at this point in the fiscal year. So, this reduction is more significant when viewed in light of that fact. Reductions are recommended in a number of categories, with the largest reduction – $22.5 million – in School-Age Child Care (SACC) revenues. This represents a 50 percent cut in anticipated revenues in this category as the SACC program was impacted by the closure of Fairfax County Public Schools in response to the pandemic. Although SACC has been temporarily replaced by the Supporting Return to School (SRS) program, this program is operating at a limited number of FCPS sites and is generating significantly less revenue. A one-time reduction of $2.30 million in the Department of Neighborhood and Community Services is also included in this package in recognition of savings resulting from changes to service delivery in several programs, including SACC.

One-Time Savings in Personnel Services and Operating Expenses NON-RECURRING

Agency 79, Dept. of Neighborhood and Community Services FY 2021 Expenditure ($2,300,000)

Net Cost ($2,300,000)

A number of reductions totaling $2,300,000 are included in Personnel Services and Operating Expenses. These reductions are due to savings that were a result of operational changes during the pandemic, including FASTRAN shifting towards meal delivery services instead of normal transportation operations as well as reduced operations in therapeutic recreation and programs in community centers and senior centers; and savings realized in the School-Age Child Care (SACC) program since SACC is currently not operating due to Fairfax County Public Schools (FCPS) operating in a primarily virtual learning model. It should be noted that SACC has been temporarily replaced by the Supporting Return to School (SRS) program which is operating at a limited number of FCPS sites. Staff may need to modify the SRS program as FCPS returns more children to in-person learning. Since these savings are a direct result of a shift in service delivery and/or a decrease in service delivery, it is not anticipated that these savings will be realized once the pandemic is over and service delivery returns to normal.

November 17, 2020, the Fairfax Board of Supervisors met. The agenda for the meeting included a request for board of supervisors authorization to apply and accept grant money, some of which would go toward providing meals for children participating in the SRS program.

Authorization for the Department of Neighborhood and Community Services to Apply for and Accept Grant Funding from the Virginia Department of Education Child and Adult Care Food Program and Summer Food Service Program

ISSUE:

Board of Supervisors authorization is requested for the Department of Neighborhood and Community Services(NCS)to apply for and accept grant funding, if received, from the Virginia Department of Education Child and Adult Care Food Program and the Summer Food Service Program in the amount of $1,515,270.Funding will be used to provide meals to children participating in the Fairfax County Supporting Return to School(SRS)program($1,306,752)and at programs available at five NCS community center locations ($208,518) during theCOVID-19 pandemic. There are no grant positions associated with this application. The grant period for the SRS and the NCS community center programs is the 2020-2021 school year. No Local Cash Match is required. If the actual award received is significantly different from the application amount, another item will be submitted to the Board requesting appropriation of grant funds. Otherwise, staff will process the award administratively as per Board policy. Board authorization is also requested for the Chairman of the Board of Supervisors, the County Executive and/or a designee appointed by the County Executive to enter into the grant agreement and any related agreements, including but not limited to Federal Sub award Agreements, on behalf of the County.

SRS was plugged in the November/December 2020 issue of the “OFC Grapevine”, which is the Fairfax County Office for Children “newsletter for staff and friends”. Among other things, the newsletter confirms FCPS’ involvement and states:

SRS works in partnership with families and FCPS to ensure children receive guidance and support during the FCPS virtual academic day. Staff assist with technology needs, help children follow their daily schedule, facilitate opportunities for active breaks, and provide support for synchronous and asynchronous learning. SRS staff also provides opportunities for children to be outdoors, connect with friends, and participate in engaging activities before and after school.

December 30, 2020, Fairfax Health and Human Services issued an update, which announced that the SRS program would be moving to 10 additional schools:

Child Care Services

As Fairfax County Public Schools continues to plan and prepare for children to return to in-person instruction, the availability of space at the 37 Supporting Return to School (SRS) program locations will change. The Office for Children has worked with FCPS to review space requirements and develop a plan moving forward in this next phase of return to school. SRS is adjusting space as needed in current locations and moving to 10 additional schools. This will ensure that the program has sufficient classroom space to continue serving the current enrollment, as well as serve additional children and families.

On January 4, 2021, the SRS program will begin serving children at the following additional 10 sites:
Annandale Terrace

Beech Tree
Braddock
Columbia
Fairhill
Glen Forest
Mt. Vernon Woods
Oakton
Rose Hill
Westlawn

Child care lead –Anne-Marie Twohie, OFC Director (703-501-3487)

SRS-related work was submitted to the December 16, 2020, Fairfax County GIS Excellence Awards, which is an award that “is intended to showcase the power of GIS tools in creating accurate, instructive, and visually-pleasing printed maps. The map must have been or plan to be used for Fairfax County business, and an original design is required (i.e. the map must not be based on any commonly used templates).”

Any doubters that didn’t consider SRS a “business” would have to ask the GIS team how a SRS submission was allowed if it isn’t a business.  

February 23, 2021, Fairfax County Executive Bryan J. Hill submitted a County Executive Message to the board of supervisors, in which he stated:

County and Schools staff and leadership have worked together in numerous ways as we have charted our paths through this pandemic. One of the most successful partnerships was the Supporting Return to School (SRS) program, which was established at FCPS sites to provide full-day on-site programming for K-6 students to support their success in a virtual learning environment.

That’s Not the Way it Works

While the SRS program might have been birthed by well-meaning individuals, it should have been vetted by experts in, among other things, IDEA 2004 and Section 504.

In the special education community, parents are thankful for well-meaning teachers and other school division staff. However, what we need are people who can be well intentioned and knowledgeable of the law—or legal experts who can partner with the well-intentioned. The nicest people in the world can cause harm when they don’t fully implement federal and state regulations.

Addition Documents Obtained Via FOIA Requests