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."

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June 6, 2023, Virginia Department of Education (VDOE) found Fairfax County Public Schools (FCPS) 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.

VDOE's Findings

VDOE's letter of findings (LOF) identifies numerous concerns based simply on FCPS's "Special Education Handbook for Parents":

• First, this document contains an incomplete statement about the provision of the Procedural Safeguards Notice. Procedural Safeguards must also be provided when the parent files the first complaint in a year, and when certain disciplinary decisions are made.

• In addition, the Handbook implies that a single form may be used to institute any “appeal.” However, it addresses only administrative reviews, mediation and due process hearings, but appears to be based upon the state complaint form. While a footnote indicates that use of the form is not mandatory, it recites that it “may be used to give notice” to LEA “of parent disagreement with the identification, evaluation, or educational placement of a child with a disability, or the provision of a free appropriate public education of [sic] that child.” This may cause considerable confusion for parents wishing to file such a state complaint, especially when they are unfamiliar with terminology, who may end up participating in a process they did not intend to commence.

• Even more troubling is the following: “Please submit this form to Due Process and Eligibility…who shall then forward the request to the Virginia Department of Education.” While a parent certainly is required to copy the LEA on state complaints or requests for due process hearings, and while mediation requires agreement by both parties before it can take place, implying that documentation must be submitted first to the school division may adversely affect the Student, as timelines for state complaints commence when VDOE receives the complaint, and timelines for due process commence when both the school division and VDOE have received the request. While we are not in possession of any information suggesting that LEA has in fact used this process to delay the start of timelines or for other improper purposes, it is not required by the regulations, and has the potential for abuse.

• Finally, we note that recent information provided by the Office of Special Education Programs indicates that, if a dispute resolution form asks for information other than the minimum information required under the regulations, that information must clearly be marked as “optional”. Some of the information included on the form falls within this category, such as student ID number. If the student’s identity cannot be confirmed by the required contact information, clarification should be made in the beginning stages of the process but should not delay it.

• Because (i) the Student Rights and Responsibilities handbook contains incomplete information regarding appeals of MDRs, (ii) the special education handbook fails to accurately describe procedural safeguards, and (iii) the form and its use are flawed as described above, the Office of Dispute Resolution and Administrative Services finds the LEA to be in non-compliance with regard to this issue.

Corrective Action Plan

VDOE directed FCPS to initiate the following corrective action plan (CAP):

1. Revise its Student Rights and Responsibilities Handbook to correct the error in options for discipline-related dispute resolution.
2. Revise its Special Education Parent Handbook to correct the information about procedural safeguards and to clarify how to request each option.
3. Discontinue use or significantly revise the Notice of Appeal document using the findings of this investigation.
4. Prior to any publication of revisions, submit the same to VDOE for approval.
5. Identify all Students who were the subject of an Administrative Review during the one-year period prior to the issuance of this Letter of Findings.
6. Develop a notice to be approved by VDOE and provided to each identified Student’s parents that informs parents that the issues raised in the Administrative Review may, depending on the particular facts and circumstances, still be addressed through a state complaint, a mediation, or a due process hearing.

Notably missing: VDOE does not require FCPS to address any negative impacts its Local Administrative Reviews had on children and families who went through the process. For some of these students, VDOE's findings are too little, too late.