This is part VI 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 VI is FCPS’s failure to provide the related service of transportation.
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part I
- Focuses on FCPS denying services to students who didn’t participate in online learning.
- Fairfax County Public Schools Ignores Office for Civil Rights; Noncompliance Continues, Part II
- Focuses on FCPS reducing, limiting & watering down services and instruction
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part III
- Focuses on FCPS’s refusal to convene teams of knowledgeable committee members, its refusal to use and document data in compliance with IDEA and Section 504, and its refusal to ensure individuals with credentials to interpret data are in attendance at IEP or 504 Plan meetings.
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part IV
- Focuses on FCPS’s refusal to provide access to educational records, specifically “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.”
- FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part V
- Focuses on FCPS’s practice of equating provision of a computer with provision of a Free Appropriate Public Education (FAPE)—and then denying compensatory education.
What are Related Services?
Related services are supports required to assist a child with a disability to benefit from special education. This could be transportation to tutoring sessions, work with a speech therapist, assistive technology training for the parent and student, training parents to use sign language, providing special training to teachers working with students, and much more.
34 C.F.R. § 104.33(c)(1) provides the following:
104.33 Free appropriate public education.
“(c) Free education — (1) General. For the purpose of this section, the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. [Emphasis added.] It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of this subpart. Nothing in this section shall be construed to relieve an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.
“(2) Transportation. If a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person or his or her parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient.” [Emphasis added.]
What does this look like?
Let’s look at a separate OCR complaint filed in 2019 (still being investigated at a systemic level).
In this case, FCPS administered the PSAT NMSQT to 10th and 11th graders. General education students were provided transportation home at the end of the school day. Students whose accommodations afforded them more time for testing had to find their own transportation home, because their testing timeframe would last longer than the timeframe for general education students.
This occurred at multiple high schools and had been going on for years, but here’s an email from South County High School that documents the practice:
The PSAT NMSQT will be given on Wednesday, October 16th to all 10th and 11th graders. Students should report directly to their testing rooms – we have asked Advisory teachers to share these locations with the students. October 16th will be an early release day with a dismissal time of 12:55 PM. A grab’n’go lunch will be available for purchase in the cafeteria prior to departure. Students receiving College Board Approved Accommodations will finish after the dismissal bell and will need to ensure their own transportation home. If students wish to waive their accommodations, a letter signed by parent/guardian must be received in Students Services by Tuesday, October 15. [Emphasis added.]
School staff contacted parents to arrange transportation home. My own son’s IEP case managers were clueless as they advised me of the need to provide transportation, even though FCPS was engaging in a practice that violates both IDEA and Section 504.
FCPS changed its practice regarding PSAT transportation after the complaint was filed, but the noncompliance continued in other areas.
Office of Civil Rights Opens Investigation of Fairfax County Public Schools
FCPS’s Continued Noncompliance
In addition to the open OCR complaint mentioned above, here’s an example that occurred during COVID, which still applies today:
Prior to COVID, a friend of mine won a state complaint against FCPS, which determined that FCPS owed her son compensatory education. After COVID hit, she moved, but FCPS remained on the hook for the compensatory education even though she moved. She didn’t live near the facility providing the compensatory education, so her son needed transportation to access the compensatory education. FCPS fought to get out of it and U.S. Department of Education (USDOE) had to get involved because Virginia Department of Education (VDOE) sat on the sidelines without taking action. FCPS had to pay for her gas and for car wear and tear (they owed a lot of compensatory education, thus a lot of travel).
During COVID, parents traveled to schools, tutors, and other locations to ensured access to services they were paying out of their own pockets.
Although FCPS has offered to reimburse some of what parents paid during that time period, it hasn’t made proactively offering to provide the related service of transportation a practice. I sat in a meeting myself, at which FCPS said it would reimburse some tutoring and a portion of an evaluation, but when it came to transportation? Nothing. No mention. No one brought it up, even though Dawn Schaefer was in attendance. Dawn is FCPS’s director of its office of procedural support and knows about the related service of transportation.
What Do OCR’s Findings and Resolution Say?
OCR’s findings about FCPS and its resolution agreement with FCPS are clear that FCPS is supposed to be looking at related services, too—and not just transportation. (Again, transportation just happens to be the focus here.)
From OCR’s Letter of Findings (emphasis added):
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 §§ 104.33 and 104.35. . . .
As the Department has consistently explained, however, the right to FAPE does not change with a pandemic. The Division therefore had to make every effort to provide special education and related services to students in accordance with their IEPs or, for those entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. By the Division’s own admission, its use of TLPs fell short of that standard.
Page 20 (emphasis added):
An April 2, 2020, e-mail among administrators claimed that because the Division was “one of very few divisions that are committing to ‘new learning’,” rather than reviewing what students had already learned, it would “be at a distinct disadvantage for [special education] compensatory.” Later that spring, Division administrators had even estimated how many students would be owed related services (9,820), and how much those services would likely cost them—around $3 million, for the more than 60,000 service sessions missed from March 13 to May 13, 2020.
From OCR’s Resolution Agreement with FCPS (emphasis added):
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.
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;
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.
B. Compensatory Education Owed: For students with disabilities who did not receive the regular or special education and/or related aids or services designed to meet their individual educational needs during the Pandemic Period, the Section 504 knowledgeable committees or IEP teams will do the following:
1. Make an individualized determination regarding what compensatory education the student needs to return the student to the position the student would be in if the student received services that met his or her individual needs;
2. State the factors considered by the Section 504 knowledgeable committee or IEP team in determining any compensatory education owed to the student;
3. Develop a plan for providing timely compensatory education:
a. the team may consider recovery services already being provided as a factor in determining compensatory education if those recovery services, based on an individualized determination of the student’s compensatory education needs, address the specific individualized needs of the student;
b. however, when the recovery services already being provided do not address the specific individualized compensatory education needs of the student, the team cannot directly subtract provided recovery minutes from the total amount of compensatory education the team determines is needed;
c. the team will include an appropriate and reasonable timeframe for the completion of the agreed-upon compensatory services.
4. Provide the student’s parent or guardian notice of the procedural safeguards, including the right to challenge the Section 504 knowledgeable committee or IEP team’s determination through an impartial hearing;
5. Provide the student’s parent or guardian notice of the process to follow for requesting reimbursement for out-of-pocket expenses incurred by the parent or guardian to provide services required by the student’s Section 504 plan or IEP by private or non-Division personnel that were not provided by the Division during the Pandemic Period.
A. Data tracking: By January 17, 2023, the Division will develop an electronic tracking system that tracks each determination made by IEP teams or Section 504 knowledgeable committees regarding compensatory services, including the reason for the determination. For each student determined to be in need of compensatory services, the Division will provide the exact minutes, type, and date of related aids and services provided as compensatory education for students with IEPs and Section 504 plans. This system will include and allow for the creation of weekly reports that show the number of minutes of special education, related aids, or services that are required by a student’s IEP or Section 504 Plan, the actual service minutes provided, the type of services, and service date; and the corresponding compensatory services specific to minutes, type, and date of provision for services.
1. Within ten (10) business days of OCR’s approval of the Plan, the Division will provide a draft of the written guidance and/or training materials for the training described in Section V.A. above to OCR for review and approval.
Within seventy-five (75) school days of OCR’s approval of the training materials, the Division will provide OCR documentation demonstrating that the written guidance and/or training has been provided to all to relevant Division-level and school-level staff who provide special or regular education, and related aids or services to students with disabilities.
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