Same Story, Different Year: Virginia Department of Education's "Monitoring" Fails to Identify and Address Noncompliance, Fairfax County Public Schools Withholds Information

In 2020, Virginia Department of Education failed to stop the noncompliance occurring in Fairfax County Public Schools (FCPS), and in other districts across the state.

In 2023, the story remains the same.

July 24, 2023, U.S. Dept. of Education’s (USDOE) Office of Special Education Programs (OSEP) released updated policy guidance in response to receiving "multiple requests from a diverse group of stakeholders for updated and consolidated guidance interpreting the general supervision requirements of States under the Individuals with Disabilities Education Act (IDEA)."

VDOE’s new guidance includes the following statement:

"OSEP is clarifying that, as part of a State’s general supervision system, a State may not ignore credible allegations about potential noncompliance, to ensure the timely identification of noncompliance."

A variation of this appeared in OSEP’s June 2020 Differentiated Monitoring and Support (DMS) letter of findings about Virginia:

"Completely ignoring credible allegations of noncompliance is not a reasonable method of exercising the State’s general supervisory responsibilities.”

Yet, the noncompliance continues in Virginia and VDOE continues in its failures to identify and address noncompliance staring it in the face. An example of this can be found in its “monitoring” of FCPS.

VDOE’s monitoring of FCPS included self-assessment activities performed by FCPS, which were followed by VDOE performing a validation process. July 18, 2022, VDOE issued a cover letter and final report to FCPS, but didn’t make the information public. It was obtained within the last month via a freedom of information act (FOIA) request.

In addition to using words like “few” and “many”, rather than including hard data, in its report, VDOE failed to identify noncompliance that has been staring it in the face for years.

The following is a brief timeline related to the noncompliance and/or investigations FCPS and VDOE were aware of, the messaging (and lack thereof) FCPS provided to its own Advisory Committee for Students with Disabilities (ACSD) during this time period, and the findings that Office for Civil Rights and FCPS’s own two-year special education audit identified, which VDOE failed to include in its report. These overlap the time period VDOE’s monitoring occurred, so some, if not all, of the findings made by OCR and FCPS’s own audit should have made it into VDOE’s final report. That was not the case.

January 12, 2021:

Office for Civil Rights launched an investigation into FCPS, for civil rights violations related to the COVID pandemic.

January 13, 2021:

FCPS monthly ACSD meeting was held. Although Jane Strong, then-director of FCPS’s office of special education procedural support, and Debbie Lorenzo, coordinator of FCPS’s procedural support services, spoke about the very issues at the heart of OCR’s investigation, neither mentioned OCR’s investigation. See minutes and the recording from the meeting.

May 4, 2021:

OCR submitted an “Initial Data Request Letter” to FCPS Superintendent Scott Brabrand, which focuses on “what the Division has done to address any denial of free appropriate public education (FAPE) that has occurred for students with disabilities while the Division has offered remote learning in response to the pandemic.”

May 12, 2021:

FCPS monthly ACSD meeting was held. Jane Strong spoke to recovery services being added to IEPs leading up to the summer. Even though recovery services were at the heart of OCR’s investigation, Jane did not speak to OCR’s investigation.

See minutes for, and recording of, meeting.

June 9, 2021:

FCPS monthly ACSD meeting was held. Dawn Schaefer, current director of FCPS’s office of special education procedural support office did a presentation about one-year high school extensions for some students who have disabilities. Jane Strong shared that staff had been hard at work on recovery services, hiring staff, and starting up a new summer recovery program.

Neither Dawn nor Jane mentioned OCR’s investigation into the very recovery services Jane spoke about. However, Jane did state that she would be retiring from FCPS and moving to Georgia to be an assistant professor of Special Education at a local university.

See minutes for, and recording of, meeting.

July 2021:

FCPS released the year one interim report for its two-year audit of its special education program. One-year into the audit, the following was already identified:

1. FCPS staff and parents expressed concern about the degree to which special education policy and programming decisions reflect their needs and input.

2. Suspension and expulsion rates vary based on demographic factors (e.g., race/ethnicity).

3. Additional resources are needed to support dually identified students, specifically ELs with disabilities and twice-exceptional (2e) learners.

4. SWDs, their families, and their educators need additional support to prepare for postsecondary transitions.

5. IEPs do not include sufficient data-based information to guide individualized educational planning.

August to December 2021:

In its final monitoring report cover letter, VDOE states that FCPS conducted the Core Special Education Assessment (CSEA) activities portion of VDOE’s monitoring between August and December 2021.

August 26, 2021:

VDOE notified FCPS that it would be monitored. August 26, 2021, was a Thursday, so FCPS had three business days in August to work on the CSEA activities, even though VDOE states FCPS’s CSEA activities occurred in August, and FCPS’s later statements indicate FCPS staff had to engage in training before starting the CSEA activities.

September 8, 2021:

FCPS monthly ACSD meeting was held. FCPS’s department of special services did an update and Dawn Schaefer did a presentation about the “Post-Secondary Advancement Plan”. There was no mention of the OCR investigation of VDOE’s monitoring.

See special services update, and minutes for, and recording of, meeting.

September 21, 2021:

The year one interim report for FCPS's two-year audit of its special education program was presented to the Fairfax County School Board. Since this report was presented during the August to December 2021 period VDOE said FCPS did its monitoring activities, one would think that issues identified would have been fully identified in VDOE’s monitoring report. They were not.

October 13, 2021:

FCPS monthly ACSD meeting was held. Mike Bloom and Dawn Schaefer advised the members that FCPS had been chosen by VDOE to be monitored. Both attended training related to the process. In addition, DSS indicated it hired more than 200 staff to give recovery services to more than 1,000 students, and that staff continue to work with families to convene IEP meetings to discuss the data resulting from these services. There was no mention of OCR’s investigation.

See special services update, and minutes for, and recording of, meeting. According to FCPS's ACSD cite, "Due to technical difficulties with our Zoom meeting connection on October 13, only the last 33 minutes of the ACSD general meeting is posted and available for viewing."  We apologize for this inconvenience and hope to have this issue remedied for our November meeting."

December 8, 2021:

FCPS monthly ACSD meeting was held. Dawn Schaefer reported that FCPS was continuing to provide recovery services to FCPS students, and that:

“IEP teams were given the directive to continue to consider those services and also to look at every student who received recovery services previously to determine whether or not those recovery services did close the gap for those students or if those students continue to require recovery services.”

(The reality: As of as of February 2022, only about “1,070 students have received are or [sic] have recovery services indicated on their IEP in some form” and as of October 2022, there were only "59 students with recovery services on their current IEP.” See March 3, 2022, and October 21, 2022, entries below.)

Dawn provided an update on the audit but didn’t mention OCR:

“I wanted to follow up with everyone. I think in September, I shared with you all that we were undergoing an audit with the Virginia Department of Education and we have completed our first the first arm of that audit, which is a self assessment. That will be, that is currently going through the approval and submission process for VDOE, but we will be sure to bring that information to you all, perhaps in January or February, if there’s space on the agenda regarding so far that self assessment in those findings, and we learned this week that VDOE is planning to visit planning early April, for their on site records review and school visits as part of that same audit. So more to come.”

See minutes for, and recording of, meeting.

March 3, 2022:

FCPS’s Kelly O’Connell emailed FCPS’s Katherine Murphy, Kristina Roman, and Dawn Schaefer, information regarding OCR’s investigation and stated that, as of February 2022, “approximately 1,070 students have received are or [sic] have recovery services indicated on their IEP in some form.” FCPS has about 28,000 students who have special education needs. Yet, in previous ACSD meetings that discussed recovery services, there was no reference to the low number of students who had actually been provided services, nor did this information make its way into VDOE’s monitoring.

April 13, 2022:

FCPS monthly ACSD meeting was held. Dawn Schaefer advised the members that DSS was being audited by VDOE and that the department was in the middle of a two-week onsite with VDOE making classroom visits and interviewing randomly-selected families. Dawn stated she believed the report would be made public and that she was told by the VDOE representative that the randomly-chosen parents VDOE interviewed by phone had positive things to say and that her department felt it was a good cross section of parents. No mention of the OCR investigation.

See minutes for, and recording of, meeting.

April 15, 2022:

VDOE completed its validation process of FCPS’s monitoring activities.

June 8, 2022:

FCPS monthly ACSD meeting was held. DSS did a presentation on ESY. No mention of OCR’s investigation or VDOE’s monitoring.

See minutes for, and recording of, meeting.

July 18, 2022:

VDOE issued its final report on its monitoring to FCPS.

September 14, 2022:

FCPS monthly ACSD meeting was held. Dawn Schaefer and Michelle Boyd advised the members that FCPS’s IEP was being changed to bring it into compliance with state regulations. In other words, FCPS’s IEPs were in noncompliance. The noncompliance cited, and VDOE’s knowledge of this noncompliance, are years old, so this should have come up in VDOE’s final monitoring report. It does not.

October 21, 2022:

In response to a FOIA request, FCPS admitted, “Currently, there are 59 students with recovery services on their current IEP.” This scandalously low number of students with recovery services in their IEPs was not identified in VDOE’s final monitoring report.

September 26, 2022:

FCPS released the final report for its two-year audit of its special education program. The audit identified the following issues:

  • FCPS students with a disability (SWDs) perform substantially lower on state exams than FCPS students without disabilities across all subjects and all racial-ethnic groups. . .
  • SWDs disproportionally receive in- and out-of-school suspensions compared with peers without disabilities.
  • Subgroups of students vary in the likelihood of identification for special education.
  • FCPS does not meet the Virginia state targets for percentage of time SWDs are included in the general education setting.
  • Most present levels of performance statements rely on subjective information rather than objective, measurable terms
  • Annual IEP goals and short-term objectives include measurable behaviors and a criterion, but most goals lack conditions under which the behavior will occur.
  • While most parents report having adequate input in their child’s IEP development, some IEPs lack documentation of parent input and collaboration.
  • IEPs do not consistently document detailed rationales for placement decisions.
  • IEP transition goals and the transition services students receive may lack alignment
  • The quality of transition planning and programming varies by disability category
  • Processes to facilitate transitions between grade levels and schools are not clearly defined at the district level.
  • IEP progress reports do not provide sufficiently detailed, data-based information.
  • Special education services are implemented inconsistently across the district.
  • Publicly available information about special education career pathways lacks important details needed by prospective employees
  • Staff identify workload and compensation as interrelated factors with substantial influence on FCPS’s ability to recruit, hire, and retain special education personnel, especially when competing with neighboring school districts.
  • Staff perceive inefficiencies in the staffing allocation process.
  • Novice teachers lack preparation to adequately support SWDs and need tailored professional development opportunities.
  • Professional development opportunities related to educating SWDs are not sufficiently aligned with staff roles and identified areas of need.
  • Use of explicit instruction varies across classrooms.
  • Access to evidence-based practices for SWDs varies.
  • FCPS staff have limited knowledge about and understanding of MTSS.
  • Implementation of MTSS procedures is inconsistent across schools.
  • Communication from the district about special education can be inconsistent and difficult to access
  • At the school level, communication challenges include a lack of timely information from administrators, insufficient time to collaborate, and demanding workloads for special education teachers.
  • Parent satisfaction with the amount and quality of communication from staff varies by parent subgroup and school level.
  • Parents and staff have different opinions about the quality of parent–staff communication.
  • Although offered by FCPS, translation services are not widely or easily accessible for all who need them

The majority of these issues were not identified in VDOE’s monitoring report, even though VDOE monitored FCPS during the last few months of the FCPS's two-year audit.

November 2022:

OCR found FCPS at fault for massive, countywide noncompliance. OCR identified the following:

  • FCPS 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”.
  • “FCPS 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”.
  • “FCPS 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”.

In addition, FCPS found that “the evidence obtained to date raised compliance concerns that staffing shortages and other administrative obstacles resulted in non-provision of some FAPE services for students with disabilities; and that the Division did not accurately or sufficiently track services provided to students with disabilities to enable the Department to ascertain the Division’s compliance with 34 C.F.R. § 104.33, as required by 34 C.F.R. § 104.61 (incorporating 34 C.F.R. § 100.6(b)).”

The majority of these issues were not identified in VDOE’s monitoring report, even though VDOE's monitoring overlapped OCR's investigation. OCR’s findings identified noncompliance from April 2020 to June 2022. VDOE’s monitoring activities (both the self-reporting and validation) occurred between August 2021 and April 2022, so it is curious that OCR was able to identify issues VDOE’s final report fails to include.

Meanwhile, VDOE's recent attempts at addressing state complaints filed by parents resulted in VDOE halting the complaints because parents used Google Drive.

Additional Reading:

Office for Civil Rights Opens Investigation Into Virginia Department of Education; Did VDOE’s COVID-19 Guidance Lead School Divisions to Deny FAPE to Students Who Have Disabilities?

U.S. Dept. of Education Releases 2023 Determination Letters; Virginia Failed to Meet Requirements, While States Like Alabama Climbed Out of Years of “Needs Assistance” Determinations

Fairfax County Public Schools Provided False Information to Office for Civil Rights

FCPS Knows Its IEPs Are Noncompliant, Leads Hearing Officer, Virginia Dept. of Ed., Staff, and Parents to Believe Otherwise

Fairfax County Students & Educators in Crisis; FCPS Delays Release of Damning Data

Virginia Remains Outlier as U.S. Dept. of Education Announces Close-Out of Monitoring in Arizona, Delaware, Florida, Hawaii, and Arizona

Office for Civil Rights vs. Virginia Dept. of Ed: Two Agencies, Two Investigations, Two Very Different Outcomes, Part I