5.18.20, Virginia Department of Education (VDOE) issued a Notice of Complaint (NOC) in response to a systemic complaint filed on behalf of six Fairfax County Public School (FCPS) students.
FCPS's response to the complaint makes a case AGAINST providing compensatory education in response to the cessation of in-person instruction during the 2019-20 school year, based on an argument that schools weren't open and FCPS isn't responsible for closed and/or partial days.
In addition, it states that:
While Taken from IEPs, TLPs Are Neither IEPs Nor IEP Amendments, and
Accordingly Do Not Require Parent Consent or Prior Written Notice.
Let's talk about comp ed first.
“. . . the Services page in each student’s IEP stipulates that FCPS 'will not provide or compensate for services missed on days when schools are closed due to holiday, inclement weather, or for reduced services that are the result of a partial day schedule.'"
Under such reasoning, reduced services could occur as the result of a partial day service — and FCPS wouldn't have to make them up.
For example, on those two-hour early release days before holidays, a child with a behavior intervention plan (BIP), as one example, might not have it implemented. After all, if is a partial day, "reduced services" could occur, leaving any child with an IEP in a bad position, unable to do anything about their rights being violated because their IEP contains a concerning clause.
FCPS went on to state:
“Virginia Department of Education’s FAQ 025-12 states that there is no expectation that a school will provide services when the school is closed, whether planned or in unplanned emergency situations. See e.g., Smith v. James C. Hormel School of Virginia Institute of Autism, 2009 WL 4799738, at *FN 26 (W.D. Va. Dec. 8, 2009) (where the school was closed for a holiday break, no educational services could be lost during the closure); also Student with a Disability Dep’t of Defense-Defense Legal Servs. Agency, 109 LRP 47582 (2008) (further reasoning that when a school calendar is compressed, “it is not surprising that special services might also be compressed or reduced. Such a reduction does not indicate disorganization or pettiness or behalf of the school, but rather the practical result of the facts.”)”.
FCPS left out important information from VDOE’s FAQ 025-12, which also states:
“A school division’s obligation to provide specific, quantifiable services in accordance with an IEP is an enforceable obligation. In the events noted above [inclement weather, emergency situations, holidays, or teacher workdays], a holiday is the only event that has been addressed by the courts. A Virginia federal district court has ruled that no services are required during Thanksgiving or Christmas Break. (Smith v. James C. Hormel School of the Virginia Institute of Autism and Greene County School Board, 2009, U.S. District Court, LEXIS 114892, aff’d in relevant part 2010 U.S. District court, LEXIS 29026). It is reasonable to apply this same standard to Spring break and designated holidays, such as Columbus Day, when those holidays are so noted on the school division’s school year calendar as a planned closure. . . .
"As part of general practice, school divisions may "bank" instructional hours in calculating what constitutes a regular school year to ensure that the division meets the number of instructional hours/days. If the unscheduled closures exceed this "banked" time, the school division is required to make up the missed time for students in general education, as well as special education. Therefore, IEP services that were not provided on a day of closure must be provided on the school division’s make-up days (whether banked or additional).”
Per FCPS's citing of "Student with a Disability Dep’t of Defense-Defense Legal Servs. Agency, 109 LRP 47582", the FCPS calendar was not compressed. FCPS had “banked” (per VDOE’s FAQ 025-12) enough snow days into its calendar that it was able to continue to the planned end of the school year by applying those snow days to the days missed between Governor Northam’s 3.13.20 directed closure and FCPS's launch on its online campus in April.
Schools were open and FCPS had a responsibility to implement IEPs in full or on make-up days.
FCPS's decision to provide students from 1 to about 3 hours of instruction a few days a week, depending on the students’ grade, was a choice made by FCPS. It could have chosen more. (This is outlined in “FCPS Distance Learning Plan”, which appears at the end of this article.)
4.27.20: FCPS School Board Member Rachna Sizemore Heizer sent an email stating:
“The School Board & FCPS are mandated by Virginia law to annually provide a public education for 180 days, or a minimum of 990 hours. With the Governor’s initial (mandatory) 2 week closure, the annual built-in hours for inclement weather have been expended. Thus, FCPS must (and shall) continue to provide student instruction until the end of the designated school year.”
See Virginia Code related to this, too:
8VAC20-131-150. Standard School Year and School Day. A. The standard school year shall be 180 instructional days or 990 instructional hours. The standard school day, including passing time for class changes and excluding breaks for meals, shall average a minimum of five and one-half instructional hours for students in grades 1 through 12 and a minimum of three hours for kindergarten. Recess may be included in the calculation of required instructional hours for elementary school, provided that recess does not exceed 15% of the required instructional hours. B. All students in grades 1 through 12 shall maintain a full day schedule of classes (5-1/2 hours), unless a waiver is granted in accordance with policies defined by the local school board.
Per 34 CFR § 300.106(b); 8 VAC 20-81-10:
“School day” is defined as “any day, including a partial day, that children are in attendance at school for instructional purposes. The term has the same meaning for all children in school, including children with and without disabilities.”
FCPS' also cites VDOE’s Frequently Asked Questions – COVID-19 & Virginia Public Schools, current through June 1, 2020, to include the quote:
“Positive proactive strategies to continue engagement in learning are not a form of instruction/instructional day and thus would not require school divisions to offer FAPE. If a school division does begin to offer instructional services by alternative means[,] the division will remain responsible for [FAPE] of its students eligible for special education services with an [IEP].”
FCPS continued to cite:
“ . . . nor are schools “open” – in a way that would constitute a full “school day”, even on a virtual basis.
4.28.20: During his interview with Kojo Nnamdi, Superintendent Scott Brabrand stated,
“And we have had really two amazing great days of learning this week. And I expect it to continue for the remainder of the fourth quarter here as we close out the school year . . . ”
He said “day”, not half-day or partial-day or any other type of day. He stated, too, that it was to be the normal for a long while.
After Governor Northam ordered the cessation of in-person instruction, FCPS chose what that would look like for its division — and then its online launch blew up in its face not once, but a number of times.
In addition, FCPS chose to implement Temporary Learning Plans (TLP) instead of IEPs.
TLPs and Prior Written Notice
In that same response to the systemic complaint, FCPS states:
While Taken from IEPs, TLPs Are Neither IEPs Nor IEP Amendments, and
Accordingly Do Not Require Parent Consent or Prior Written Notice.
Let's go back to Smith v. James C. Hormel School of Virginia Institute of Autism, which is a case that FCPS cited in its response to this complaint (see above). FCPS left this portion out of its response:
“Prior Written Notice must be given to the parents of a child whenever the LEA proposes to initiate or change the identification, evaluation, or placement of the child, or the provision of FAPE to the child. 20 U.S.C. 1415(b)(3).”
The TLPs issued by FCPS all indicate that FAPE will change for the students, that students will no longer have their IEPs implemented. (FCPS's generic versions are included in the documents below). They specifically state:
“This Temporary Learning Plan does not take the place of your child's Individualized Education Program (IEP), and it does not contain the same services and accommodations provided for in your child's IEP. However, it does identify the continuity of learning services and consultation that will be provided for your child between now and the end of the school year. . . . When school resumes, your child's current IEP will go back into effect.”
Per Smith v. James C. Hormel School of Virginia Institute of Autism and 20 U.S.C. 1415(b)(3) Prior Written Notice should have been provided to every child in FCPS whose IEP was put on hold, resulting in a change in FAPE.
And, FCPS admitted numerous time that it knew FAPE was changing. In its response to the systemic complaint, it states:
"FCPS advised that what constitutes FAPE for each student will necessarily look different in light of the current pandemic and the closure of schools.”
FCPS Procedural Support Liaison (PSL) Katherine Harris emailed: “FAPE are not required during the two weeks starting Monday, March 16. This means no IEP meetings will be occurring during time, either.” (See emails posted below this article.)
On its “Coronavirus Update - Frequently Asked Questions and Answers - Special Education” site (which as of this writing I can no longer find on its site, but thankfully screen shot weeks back, so it is posted below), FCPS states: “What constitutes FAPE will necessarily look different in light of the current pandemic and the closure of schools, and parents can be assured that FCPS will make educational opportunities available to all students, including students with disabilities, and will be doing its best to provide FAPE within the constraints of distance learning.” (See “Coronavirus Update - Frequently Asked Questions and Answers - Special Education”)
4.23.20 FCPS School Board held a meeting, at which a special education distance learning update was on the agenda and presented.
@1:59:32: Scott Brabrand states,
“This is such an important topic. We do have an obligation to do FAPE, but FAPE never envisioned, IDEA, were the free appropriate public education came from, never envisioned a pandemic across the country, across the world, and now we’re trying to figure out how we make FAPE work and trying to provide flexibility about what we can do instead of just looking through it at the lens of what we can’t do, and we need to be trying to do everything we can, and we are in this division to provide the flexibility, so that services for kids can continue. . . .
5.5.20: Teresa Johnson and Scott Brabrand did an interview with SEPTA.
At about the 00:35 mark, Teresa states,
“So, what constitutes FAPE is necessarily different. It’ll look different in light of the circumstances of the pandemic and the closure of all of our schools and we are doing our best to provide FAPE within the constraints of the distance learning environment.”
At about the 00:38:30 mark, Scott Brabrand states,
“we’re just trying to do the best of what we thought we could do to honor FAPE but know that I don't know any school district that's being honest with parents in this country that can say that is closed that they're able to do FAPE in its full realization for every kid's IEP I don't just don't . . . The day after this happened providing direction we knew we had to do something and we wanted to do something as quick as possible now look I'm the first to say that we have lessons learned in a system this big of doing things as quickly as we had wanted we've learned a lot I've learned a lot as a leader but the TLP was about trying to do the best we could do as quickly as we could do.”
FCPS’ “FCPS COVID FAQs for Staff dated April 9 2020” document (see below) states:
“A progress report is not required for the 4th quarter because we are not providing grades for students without disabilities.”
FCPS’ document “How To Determine Contents of the TLP” states,
“After identifying which goals or objectives could be addressed in distance learning, case managers will truncate the goal to remove measurement and schedule. . . . Measurement criteria for the goals is not required, as 4th quarter progress reports will not be completed.”
FCPS PSL Katherine Harris emailed:
“Below are links to two documents with COVID-19 FAQs and IEP Meeting Preparation and Logistics. The Office of Special Education Procedural Support is working on a more specific FAQ document, but I wanted to give you some answers as quickly as possible to some of your questions as I know you’re antsy and ready to get to work.” (See emails below.)
The “more specific FAQ document” referenced in Katherine’s 3.29.20 email was later provided by FCPS FOIA officer Brandynn Reaves and is titled “COVID-19 Special Education Questions.” (See document below.) The document states,
“Progress reports will NOT need to be completed for the 4th quarter.”
And yet . . .
VDOE's "Special Education and Student Services (SESS) Frequently Asked Questions" website page states:
“When providing services, it is important to continue to monitor progress; as this will provide a starting point for consideration of services required after the reopening of schools. . . .
"The requirement to “make every effort…” does not allow an LEA to decline all or some services to students with an IEP and only offer compensatory services at a later date. While we are seeking guidance on how the impact of the COVID-19 pandemic will have on certain provisions of the Individuals with Disabilities Education Improvement Act (IDEA 2004), at present none of the requirements outlined in IDEA 2004 and, for that matter, the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (the Virginia Regulations) can be waived. As such, any requirements for . . . data and reporting, monitoring and funding are still in place."
FCPS’ document “FCPS COVID FAQs for Staff dated April 9 2020 (see document below) states that “Implementation of BIPs is suspended”, as well as a number of other concerning statements.
And . . . This is just part of the story.
Please check back in for more.
FCPS Distance Learning Plan
TLP Example—CSS Public Day
TLP Example—MSHS CatB
TLP Example—MSHS CatA
TLP Example—ES CatA
Katherine Harris Emails
Coronavirus Update Frequently Asked Questions and Answers Special Education
FCPS COVID FAQs for Staff dated April 9, 2020
COVID 19 Special Education Questions