Know This About FAPE

FAPE is an acronym for Free Appropriate Public Education.

Free Appropriate Public Education is not the definition of FAPE.

If you don't know it already, it is time to learn the definition of FAPE.

In order to know if the school division is providing FAPE and/or if your student is receiving FAPE, you need to know what it is.

Per 300.17 of IDEA, there are four components of FAPE:

"Free appropriate public education or FAPE means special education and related services that

"(a) Are provided at public expense, under public supervision and direction, and without charge;

"(b) Meet the standards of the SEA, including the requirements of this part;

"(c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and

"(d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of §§300.320 through 300.324."

The Importance of "And"

The four components of FAPE are connected by "and", which means the four components make up the whole. There is no "or". There is no "may". There is only "and."

All or Nothing

FAPE is all or nothing. One out of four—or one and done—don't constitute FAPE.

If the special education and related services your student is receiving do not meet the standards of IDEA and those of your state education agency, your student is not receiving FAPE.

If the student is not receiving an appropriate education, the student is not receiving FAPE.

If your student's IEP is not implemented in full, your student is not receiving FAPE.

And yet . . . School divisions indicate otherwise.

A Teacher's View of FAPE

During an October 2020 due process hearing, Fairfax County Public School (FCPS) teacher Sean McCormally was asked about FAPE. This partial transcript provides his statements and is an interesting view of a school attorney during a due process hearing, too.

First Excerpt

Sean McCormally was the IEP case manager and a special education teacher for the student who was the focus of this hearing. In the excerpt below, he is asked to define FAPE. What do you think? Does his explanation match IDEA's?

Advocate Kandise Lucas: Can you explain, ”You stated that [Student] had received FAPE. Correct?"

Sean McCormally: "I'm sorry. You broke up there for just a sec. Can you say it again? I'm sorry."

Advocate Kandise Lucas: "You explained that as his case manager, you were confident that [Student] had received FAPE. Correct?"

Sean McCormally: "Yes. That is correct."

FCPS Counsel Wesley Allen: "Objection, your Honor. I thought that was the same objection that Ms. Lucas raised on mine. That's the ultimate determination for the hearing officer."

Advocate Kandise Lucas: "No. No. That's not correct. You were asking whether the IEP afforded him FAPE. I'm asking him, as the case manager, did he testify that he believed that the student received FAPE. And he already testified --"

Hearing Officer Rhonda Mitchell: "Objection overruled."

Advocate Kandise Lucas: "Is that correct?"

Sean McCormally: "Yes. That is correct."

Advocate Kandise Lucas: "Okay. Can you tell me -- define what FAPE is in your opinion."

Sean McCormally: "Free appropriate public education. It is to provide for a student an appropriate -- and I'm trying to think of the exact definition that I was given when I was in graduate school for my masters in this class."

Advocate Kandise Lucas: "Well, I don't want you to go abstract on us. Can you tell us in general terms what the components of FAPE are that [Student] received? That you made sure he received in order to ensure he was receiving FAPE?"

Sean McCormally: "Okay. So the purpose of his IEP or any student's IEP to make sure that he receives FAPE is to have available the tools that help him progress in a general education curriculum. Such as, if a student had a specific learning disability that prevented them from being able to integrate information in --"

Advocate Kandise Lucas: "No. I'm specifically addressing [Student]."

Sean McCormally: "Okay."

Second Excerpt

In this excerpt, teacher Sean McCormally states that the parent's concerns about the student's accommodations were "contradictory to the facts". However, toward the end of the excerpt he states that he did have meetings with teachers that focused on the student's IEP not being implemented. (The Virginia Department of Education found FCPS in noncompliance for repeated failures to fully implement the student's IEP during the period in which Sean was the student's IEP case manager. This noncompliance is documented in VDOE's 5.24.19 Letter of Findings.)

Advocate Kandise Lucas: Was that a concern for his mother, that the information regarding the effectiveness of the accommodations was not being collected?

Sean McCormally: Not in the way that you're presenting it. No.

Advocate Kandise Lucas: Did she have any concerns about his accommodations in the classroom?

Sean McCormally: Yes. She would send daily emails about her concerns about his accommodations.

Advocate Kandise Lucas: And what were those concerns addressing?

Sean McCormally: The failure of the teachers. Failure, failure, failure. You've failed him. How could you have failed him? That's how she addressed his accommodations, unfortunately.

Advocate Kandise Lucas: Is it unfortunate or is it factual that when the parent is asking whether you implemented the IEP or not and you failed to do so, is that not factual?

FCPS Counsel Wesley Allen: Objection to form.

Advocate Kandise Lucas: Okay. I'll rephrase. When the parent says that the teacher failed to comply with the IEP, is that not appropriate? Or would you have liked it worded some other way?

Sean McCormally: I would have preferred it to not be contradictory to the facts of what was going on.

Advocate Kandise Lucas: Okay. But you yourself testified just now that you had to have meetings with some of the teachers because the IEP was not being implemented. Correct?

Sean McCormally: No.

FCPS Counsel Wesley Allen: Your Honor. Objection to mischaracterization.

Advocate Kandise Lucas: No. I'm asking him. You yourself testified that there were instances in which the IEP accommodations were not being provided and that you had to have meetings with the teachers. Correct?

FCPS Counsel Wesley Allen: Your Honor, same objection. Mischaracterizes earlier testimony.

Hearing Officer Rhonda Mitchell: Sustained.

Advocate Kandise Lucas: Okay. Were there ever instances in which you had to have meetings with the teachers because [Student]'s IEP accommodation was not being implemented?

FCPS Counsel Wesley Allen: Objection to the lack of foundation.

Advocate Kandise Lucas: No. He already addressed this issue in his accommodations. And he's interrupting my questions.

FCPS Counsel Wesley Allen: Overruled. Go ahead.

Advocate Kandise Lucas: Were there ever instances in which you had to have meetings with his teachers regarding his IEP not being implemented?

Sean McCormally: Yes, ma'am.

Advocate Kandise Lucas: Okay. Were those issues raised by his mother?

Sean McCormally: Sometimes. Yes.

Sean was bcc'd on an email from one of the student's teachers to Fairfax County Federation of Teachers. In the email, the teacher complained about the parent's advocacy and included private information about the student. Her emails ended up being a part of the almost half a dozen times FCPS violated the student's privacy in a period of about five months. VDOE found FCPS in noncompliance for the confidentiality failures, too.

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