Fairfax County Public Schools Ignores Office for Civil Rights; Noncompliance Continues, Part II

Round and round and round we go. Where Fairfax County Public Schools’ (FCPS) noncompliance will stop nobody knows.

November 30, 2022, Office for Civil Rights (OCR) released its letter of findings and resolution with FCPS. This followed OCR’s directed investigation of FCPS, which found massive noncompliance impacting over 25,000 students with IEPs or 504 Plans.

Yet, FCPS’s noncompliance—for the very issues identified by OCR—continues to occur almost three months after OCR made its findings and resolution public.

Additional Reading:

FCPS at Fault for Reducing, Limiting & Watering Down Services & Instruction

If you’re among the many FCPS parents who were frustrated by FCPS’s refusals to provide services during 2020-2022, you’re not alone.

FCPS trained its staff to reduce, limit, and water down services provided to students, which is in direct violation of IDEA and Section 504.

In addition to harming students, this harmed teachers and parents. On the one hand, there were teachers who had been trained to take this action. On the other hand, there were parents who knew the teachers’ actions were wrong.

FCPS leadership knew it was wrong. Given the ignorance exhibited in IEP and 504 Plan meetings through the years, I don’t think each educator knew he or she was being led astray by leadership that knew better. Hence, things became contentious. Teachers pushed FCPS’s agenda while parents found to ensure their children’s unique needs were met.

In hindsight, it’s easy to understand how FCPS pulled the wool over the eyes of so many educators, given this is a long-time FCPS problem, not unique to COVID. However, it’s disappointing that educators—especially the ones with children in the school system themselves—didn’t know and/or speak out against what occurred.

From OCR’s Letter of Findings:

  • Pages 1–2:
    • “Specifically, OCR found that during remote learning, the Division failed or was unable to provide a FAPE to thousands of qualified students with disabilities and failed to conduct evaluations of students with disabilities prior to making significant changes to their placements and to ensure that placement decisions were made by a group of persons knowledgeable about the students and the meaning of the evaluation data, in violation of the Section 504 regulation at 34 C.F.R. §§ 104.33 and 104.35; (2) directed staff to apply an incorrect standard for FAPE that was not compliant with the Section 504 regulation, and categorically reduced and placed limits on services and special education instruction provided to students with disabilities based on considerations other than the students’ individual educational needs, in violation of 34 C.F.R. § 104.33; and (3) failed to develop and implement a plan adequate to remedy the instances in which students with disabilities were not provided a FAPE as required by Section 504 during remote learning.”
  • Page 8:
    • “With regard to related services including speech, OT, PT, and counseling, the presentation stated that for the virtual return to school in fall 2020 the IEP team was to determine the amount of related services based on the student’s instructional time and IEP goals. The presentation stated that related service providers could join synchronous learning sessions, provide small group or individual sessions, review and appraise work samples (e.g., videos, pictures), and/or provide coaching to the parent and teacher. The guidance accompanying the presentation also indicated that, for some students, IEP goals and objectives should be reduced, both qualitatively and quantitatively, to account for the virtual setting. It accordingly instructed “[c]ase managers [to] focus on goals or objectives that have practical application in the home environment, based on the number of specialized instructional hours determined for each student and can be realistically supported based on the number of days/hours in the week.” The August 4, 2020, “Return to School – Virtual Individualized Education Program (IEP) Guidance Document for Staff” included more detailed examples of the goal changes the Division expected during remote learning. For instance, for a “Current IEP Goal” that expected a student to “answer who, what, when and where questions” after “listening to a text,” “across 4 out of 5 texts per quarter”, the suggested “Virtual Sample Instruction Goal” instead called for the student to “answer who and where questions about the text across 3 out 4 texts over four weeks.” And for a “Current IEP Goal” in math, where the IEP expected that a student would be able to solve “multi-step equation problems” at 90% accuracy over three assessments that quarter, the Virtual IEP would instead aim for solving only “multi-step addition and subtraction problems,” and then with only 80% accuracy over the same three assessments. OCR did not obtain evidence suggesting that the Division anticipated making similar changes to the objectives that students in the regular education curriculum were expected to master at the time, despite also learning remotely. In addition, OCR has learned of at least one student whose virtual IEP significantly reduced the level of services he was to receive while learning remotely. According to a federal complaint filed by the Division in July 2021, if the student were learning in person, “[f]or fifteen hours per month,” he “would receive special education services within the general education setting,” as well as “2 hours per month of small, self-contained speech language services.” If services moved online—as they did for “much” of the 2020-2021 school year—the student could only expect “2.5 hours per week of special education service in the general education setting” and another “hour per month” of his speech language services.” According to the Division, “[b]oth of th[ose] proposals in the [student’s] August 19, 2020 IEP offered [him] an appropriate education in the least restrictive environment.”
  • Page 16:
    • “As described further below, OCR found that the Division failed or was unable to provide a FAPE as required by Section 504 to thousands of qualified students with disabilities in violation of Section 504. Specifically, OCR found that, beginning with the spring 2020 shift to remote learning through the 2020-2021 school year, the Division categorically reduced and/or limited the services and special education that students were entitled to receive through their IEPs or Section 504 plans while learning remotely, in violation of 34 C.F.R. §§ 104.33 and 104.35.”
  • Page 16-17:
    • “The preponderance of the evidence supports that, beginning in spring 2020 through the 2020-2021 school year, the Division categorically reduced and/or limited the services and special education that students were entitled to receive through their IEPs or Section 504 plans while learning remotely. Based on that evidence, OCR finds that throughout that period, the Division failed to appropriately develop and provide students with disabilities instruction and related services during remote learning that were designed to meet their individual educational needs, in violation of §§ 04.33 and 104.35.”
  • Page 18
    • “Second, partly owing to its use of an incorrect FAPE standard, the services the Division did provide through its TLPs were not designed to meet students’ individual educational needs. Instead, the Division directed its IEP teams to draft TLPs that would “look different” from students’ IEPs, and that would “be significantly reduced,” due to the virtual setting. According to those instructions, the services students could receive through a TLP were not only cut, but limited to suggested amounts—in some cases, as little as 30 or even 5 minutes per month per service. And the Division made clear to its IEP teams that in making those cuts they were to “consider what services student[s] require[d] to support online, distance learning,” not what services those students needed online to support their continued progress on their IEPs. IEP teams were told, moreover, that they could make these changes unilaterally—despite in many cases not being able to conduct evaluations before doing so, as the Division acknowledged at the time. In addition, the Division’s guidance made clear to staff that for TLPs they could count such things as telephone contacts, e-mails, and pre-recorded videos as services provided.”
  • Page 18:
    • “Third, the Division also did not provide students the placements and services required by their IEPs and Section 504 plans once school buildings closed that spring. In the month following the March 2020 building closure, the Division initially provided only a variety of learning activities and packets for students on its public website and through Blackboard, which for many students with disabilities would have constituted a significant change in their services. But even by April, after the Division transitioned to remote learning, and to its use of TLPs, OCR found that many services were still not being provided at all. By May 13, 2020, according to the Division’s own internal tallies at the time, 9,820 students on IEPs had already missed some 40,608 sessions of occupational, speech, or physical therapy during remote learning—over the course of only a single month. Including earlier figures from March, that number rose to over 60,000 sessions missed in just the first two months after school buildings closed. Division documentation indicated that other students with disabilities also had those services on their Section 504 plans.”
  • Page 18:
    • “During the 2020-2021 school year, the Division continued to direct its IEP teams to categorically reduce and place limits on the services, special education instruction, and educational curriculum that students with IEPs could receive while learning remotely. . . .”
  • Page 19
    • “And according to other evidence OCR has obtained, virtual IEPs could also significantly cut some of the services a student was expected to receive remotely, possibly beyond the categorical limitations. In one case, according to the Division, a student saw his special education services reduced by a third in the general education setting, and his speech language services cut by half. On the other hand, the Division’s documents also indicated a virtual IEP could water down what students were expected to master during remote learning—answering only ‘who’ or ‘where’ questions, for example, in response to a text read aloud, but dropping ‘what’ and ‘when’. The documents reflected that a virtual IEP could also lower how much a student was expected to master of that less ambitious material—correctly answering problems involving only multi-step addition and subtraction, for instance, rather than multi-step equations, and then only 80% of the time, rather than 90%. To date, OCR has obtained no evidence suggesting that the Division had similarly downgraded its academic expectations for students without disabilities during the 2020-2021 school year, even though they, too, were learning remotely. To the contrary, in late August 2020, the Division had said publicly that it expected its students to master essentially the same material as in any other year, despite learning online.”

Continued Post-OCR Findings Noncompliance

A FCPS parent request IEEs after FCPS evaluated her student. FCPS had the choice of taking the parent to due process to defend its evaluations or grant the parent’s request for IEEs. FCPS chose that later. It granted the parent’s request for IEEs, approved the scope and provider, and later accepted and paid for the IEEs.

However, its FCPS’s IEP team refused to accept the data and recommended services or cherry picked here and there. For one evaluation it said it didn’t agree with the evaluation and instead would go with its own evaluation, and then refused to use the findings, data, or services recommendations. For another IEE it cherry picked a few points, misinterpreted them, and then used the misinterpretations to justify denials. This was not done by a school psychologist or anyone else with the credentials to interpret the evaluation. This was the work of FCPS central office staff.

February 10, 2023, FCPS held an IEP meeting with an FCPS parent to address OCR’s findings and the determination of compensatory education.

After the parent asked for the services recommended in the 2020 IEEs, FCPS said no, that those items weren’t in the child’s IEP during the time investigated by OCR and thus would not be provided. And yet . . . They weren’t in the IEP because FCPS had directed its staff to reduce, limit, and water down services and instruction.

Dawn Schaefer, who is the director of FCPS’s office of procedural support specifically stated, that FCPS would not “fund a service that was not on the IEP or proposed by the IEP.”

In another case, FCPS refused to evaluate a student for an IEP during 2020-22. FCPS knew the family had a history of Dyslexia and the child was struggling, but refused evaluations anyway. The parent requested an IEE in 2022, at which point FCPS finally did an evaluation. The initial evaluation was not complete. The parent again requested IEEs. FCPS did not take the parent to due process to defend its evaluations. FCPS approved the IEEs. The IEEs arrived toward the end of 2022 and indicated that the child is behind grade level in numerous areas and has Dyslexia, among other things.

The parent asked her school staff for compensatory education pursuant to OCR’s findings and resolution agreement with FCPS. School staff advised her that the student wasn’t eligible because she didn’t have an IEP during the April 2020–June 2022 timeframe investigated by OCR. And yet . . . The reason she didn’t have an IEP was because FCPS refused repeatedly to evaluate her.

What Compliance Looks Like

Nothing in OCR’s resolution agreement with FCPS states that FCPS can get away with its years of reducing, limiting, and watering down student services and instruction.

Instead, the findings clearly state the following on page three:

The Section 504 regulation, at 34 C.F.R. § 104.6(a), provides that when OCR finds that a district
has discriminated against persons on the basis of disability, the district shall take such remedial
action as OCR deems necessary to overcome the effects of the discrimination. Compensatory
services are required to remedy any educational or other deficits that result from a student with a
disability not receiving the evaluations or services to which they were entitled.”

And yet . . . FCPS chose to refuse the evaluations and services to which children are entitled and then refused compensatory education even though they are required under Section 504.

In addition, the OCR findings state the following:

The Division will follow the criteria described in this section to determine what, if any, associated compensatory education the Division owes to students with disabilities as a result of a failure or inability to provide regular or special education and related aids and/or services designed to meet the individual educational needs of the student during the Pandemic Period. These criteria include the following process to be followed and factors to be considered throughout the process:

A. Compensatory Education: The Division will provide prior written notice to all parents or guardians of students with disabilities or eligible students stating that by the end of the 2022-2023 school year, the Division will convene Section 504 and Individualized Education Program (IEP) meetings for each student. During these meetings, the Section 504 knowledgeable committees or IEP teams will make a determination and document the determination made regarding whether a student was provided regular or special education and related aids and services designed to meet their individual needs during the Pandemic Period. To make this determination, Section 504 knowledgeable committees and IEP teams will consider and document the following:

  1. Whether the Division, during the Pandemic Period, failed to provide the student with the regular or special education and related aids and services required by the student’s Section 504 plan or IEP that was in effect at the beginning of March 2020.
    a. In making this determination, Section 504 knowledgeable committees or IEP teams will determine whether the student received the amount of and the type of the regular or special education, and related aids and services that were required by the Section 504 plan or IEP that was in effect April 14, 2020. The services provided by parents or guardians during the Pandemic Period will not be counted as services provided by the Division. For example, for a student whose IEP called for one-on-one assistance by a paraprofessional, if that assistance was in fact provided by a parent or guardian, the Division may not count the provision of that assistance as a service provided by the Division.
    b. The Division will provide the student’s parent or guardian access to the information recorded by the Division regarding the amount of special education, related aids or services provided during the Pandemic Period, including the option to review IEP or Section 504 service logs.
    c. The Division will notify the parent or guardian of the process to challenge the determination made by the Section 504 or IEP team regarding whether or to what degree services were provided to the student during the Pandemic Period, consistent with Section 504 procedural safeguards.
  2. Whether changes to the student’s Section 504 plan or IEP that were made during the Pandemic Period, including any Temporary Learning Plans (TLPs), Virtual IEPs, or other remote learning plans that were developed, were based on the student’s individualized educational needs, particularly where changes resulted in lesser services being provided to the student than the Section 504 plan or IEP in effect prior to the changes.
  3. For students with IEPs, whether the student’s goal progress was impacted by remote learning provided during the Pandemic Period. To make this individualized determination, the IEP team will consider, at minimum:
    a. the student’s present levels of academic achievement and functional performance;
    b. the student’s previous rate of progress toward IEP goals pre-Pandemic Period; and
    c. the documented frequency and duration of special education and related services provided to the student prior to the service disruptions caused by the COVID-19 pandemic.

If you’d like to share your own example of FCPS refusing to address services and evaluations during the April 2020–June 2022 investigated by OCR, and FCPS refusing to provide compensatory education to address the earlier refusals, please click on the About button in the menu and choose the contact option. I will redact documentation provided to secure the privacy of families.

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