FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part V

This is part V in a series about Fairfax County Public Schools (FCPS) ignoring Office for Civil Rights’ (OCR) November 30, 2022, letter of findings and resolution agreement with FCPS. The series discusses noncompliance that occurred before OCR’s findings, OCR’s findings, noncompliance that continues to occur, FCPS’s open defiance of OCR’s findings, FCPS modeling continued noncompliance to staff, and what FCPS is supposed to be doing pursuant to its own resolution agreement with OCR.

The focus of part V is FCPS’s practice of equating provision of a computer with provision of a Free Appropriate Public Education (FAPE)—and then denying compensatory education.

Additional Reading:

OCR found FCPS at fault for a long string of issues that occurred during the “COVID” period.

Pursuant to OCR’s resolution agreement with FCPS, FCPS is supposed make a determination about provision of compensatory education for all students who have IEPs or 504 Plans who were enrolled in FCPS between April 2020 and June 2022. This includes graduates and students who have moved out of the area.

In Part I of this series, I discussed FCPS’s refusal to provide compensatory education to students who didn’t access the services FCPS offered them during COVID. FCPS’s reasoning for denial seems to be rooted in the mindset that FCPS tried to provide the services and it isn’t accountable for the student not showing up to receive the services.

Yet, the reason for attending could be related to depression, lack of support at home, problems with using the computer provided (to include the computer not working period), and so on.

Access to a Computer Does NOT Equal Access to Education

Let’s take a step back.

When COVID hit FCPS, we know three things:

  1. FCPS had spent the majority of the previous 10+ years ignoring the United States Department of Education’s (USDOE) guidance on how to, and the importance of, creating, maintaining, and updating a pandemic plan, and training staff to fully implement a pandemic plan. (Additional Reading: FCPS Had a Pandemic Plan in 2007; Internal Records Provide Toxic Portrait of FCPS’s “Best and Brightest”)
  2. FCPS had not provided assistive technology (AT) evaluations, services, accommodations, and/or related services to all of its students who have IEPs and/or 504 Plans. In my own experiences with the FCPS, my student initially didn’t receive AT because I didn’t it was an option and I didn’t know what a comprehensive AT evaluation or related services looked like. No reference. You don’t know what you don’t know, until one day you do know.
  3. FCPS did not immediately try to address #2 above, nor did it attempt to do this in the future.

Hence, we had a county of students for whom FCPS’s computers were a problem because they didn’t have the training to use them, their parents didn’t have the training to use them, and/or there were other reasons computers weren’t an appropriate means through which the students could access to their education.

In addition, across the county both general education and special education students experienced problems with computers not working, teachers not knowing how to use the technology, teachers’ microphones and/or videos not working and/or being filled with visual and/or audio noise, and FCPS’s spectacular, headline-making failure to launch a working online education platform multiple times. In addition, even once the platform was up and crashing less, it glitched and problems continued to occur.

Yet, according to FCPS, if a student received a computer, the student received access to services and education.

What did OCR Find?

OCR cited the following about FCPS’s treatment of students who didn’t access their education and/or services during the time period it investigated:

  • Page 9:
    • “Other evidence OCR obtained from the fall semester suggests the Division was not fully tracking when students were really receiving services online. For example, during a recorded December 2020 webinar for middle and high school special education lead teachers, teachers expressed concern that during virtual instruction some students would log in, never turn on their camera or microphone, or otherwise engage or participate in instruction, for entire class periods. Nevertheless, according to the recording, the Division was still instructing teachers to count those students present. One teacher on the webinar expressed concern that those students may be struggling or not doing work and were not really part of class.” 
  • Pages 12–13:
    • “Beyond the pre-COVID baseline, the Division’s guidance also advised IEP teams to consider other factors that appear to further limit who would be eligible for recovery services. For example, both the Guidance and Supplemental Documents instructed teams to consider the extent to which the student participated during remote learning or whether the parent declined services or did not make the student available for services during remote learning. The training provided to staff in November 2020 similarly suggested that a student who did not participate in remote learning may not be eligible for recovery services—a limitation reinforced by several of the examples given in the later Supplemental Document. Moreover, the Guidance Document again advised teams to consider whether services provided by the Division during remote learning were “reasonable in light of the circumstances,” invoking the same understanding of FAPE that the Division had adopted by the end of the prior spring. Asked about these statements in the Division’s guidance, the Director confirmed that the Division continued to apply its “FAPE in light of the circumstances standard” to make recovery services determinations. According to the Director, the question IEP teams were to ask was whether the Division had “offer[ed] FAPE in light of learning from home?” The Director conceded to OCR that the Guidance Document, so written, could result in not giving recovery services, but added that, in reality, the Division “didn’t want to leave a student behind because they didn’t participate,” and that the Division “worked hard to provide” recovery services if a family wanted them.”
  • Page 19:
    • “The evidence OCR reviewed also raised further concerns that the Division may not have been accurately or sufficiently tracking services provided to students with disabilities during remote learning, as required for the Department to ascertain its compliance with 34 C.F.R. § 104.33. For the spring 2020, for example, the [redacted content] told OCR that though she could run a report to show how many meetings Section 504 teams had held to review and revise Section 504 plans, that report would not indicate whether teams looked at plans together, or whether a team had made a determination that the needs of the student were being met—or, for that matter, whether it had made any determination at all. And during the next school year, at a December 2020 webinar, several teachers expressed concern that the Division had instructed them to count students with disabilities present for virtual instruction even when those students were only logging in, but not turning on their cameras or microphones or otherwise engaging in instruction. Based on this evidence, OCR has concerns that during remote learning the Division may not have been adequately tracking the provision of its services, as required by 34 C.F.R. § 104.61 (incorporating 34 C.F.R. § 100.6(b)), to confirm that its students with disabilities were receiving an education and services consistent with 34 C.F.R. 104.33.”
  • Page 21:
    • “Even apart from that erroneous standard, the Division appears to have limited students’ ability to receive remedial services in yet other ways. For example, in several webinars early in 2021, Division administrators acknowledged that parents and advocates had voiced concerns that IEP teams were still not raising the possibility of recovery services with parents. Moreover, both the Supplemental Document for Recovery Services and the Guidance Document suggest that students who did not fully participate in remote learning during the spring of 2020 would not be considered for compensatory or remedial services at all. The Director conceded that the Division guidance, as written, could result in not giving recovery services. She nevertheless told OCR that, “in reality,” the Division “didn’t want to leave a student behind because they didn’t participate” and that the Division “worked hard to provide” recovery services if a family wanted them. Yet, as of March 2022, that guidance remained publicly available on the Division’s website, and was still being cited and used in trainings for its staff through the spring of 2021. And as of early February 2022, only some 1,070 students with IEPs had received recovery services, joined by only 8 students with Section 504 plans – although the Division serves more than 25,000 students with disabilities. 

What Compliance Looks Like

Nothing in OCR’s resolution agreement with FCPS states that the provision of a computer equates to provision of FAPE. In terms of students accessing their education and services via a computer, nothing in OCR’s resolution agreement states that participation and/or attendance equate with provision of FAPE. Indeed, neither the word “attendance” nor the word “participation” appear within the resolution agreement. Instead, OCR states the following must be considered:

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 using attendance and/or participation to deny compensatory education, please click on the About button in the menu. I will redact documentation provided to secure the privacy of families.

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