U.S. Dept. of Education’s Office for Civil Rights Releases Investigation into Another Virginia Agency’s Denial of FAPE

Less than three weeks apart, U.S. Department of Education’s (USDOE) Office for Civil Rights (OCR) released investigation findings of noncompliance on two Virginia education agencies. November 30, 2022, OCR released its letter of findings in response to its investigation of Fairfax County Public Schools (FCPS). December 16, 2022, OCR released its letter of findings in response to its investigation of Southeastern Cooperative Educational Programs (SECDEP), which, like FCPS, is under the Virginia Department of Education (VDOE).

These two OCR findings provide additional examples of VDOE’s failure to ensure compliance within Virginia. In 2020, USDOE’s Office of Special Education Programs (OSEP) released a Differentiated Monitoring Support letter on Virginia, which called out VDOE on numerous areas of systemic noncompliance. VDOE had 90 days to come into compliance, but two-plus years later, the noncompliance continues, as does OSEP’s investigation into VDOE. (Additional reading: “Virginia Dept. of Education’s Noncompliance Continues; Blows Through U.S. Dept. of Education’s 90-Day Compliance Deadlines“, “U.S. Dept. of Education Finds Virginia at Fault for Continued Noncompliance“, “Texas and Virginia: Too Big to Fail“, “Virginia Department of Education Allows Noncompliance to Continue“, “U.S. Dept. of Ed Investigates Virginia Dept. of Ed“)

In both OCR cases, OCR identified denial of FAPE and entered into an agreement to address rectifying this denial. In the case of FCPS, the denial occurred when students were denied services and missed significant instructional time during COVID “closures”, while with SECDEF, the denial of FAPE occurred when SECEP did not reassess students who missed significant instructional time due to restraint and seclusion practices. The following are two examples included in the letter of findings regarding SECDEF:

• Student H was restrained 157 times and was secluded 155 times during the 2016-2017 school year, for a total of over 4,500 minutes. Forty-nine of those restraints and 40 seclusions occurred in a one-month period early in the 2016-2017 school year. During the 2017-2018 school year, Student H had 92 restraints and 46 seclusions. According to the data OCR reviewed, Student H was not reevaluated during the 2016-2017 or 2017-2018 school years. SECEP provided a June 2016 IEP and a May 2018 IEP; however, there are no additional files suggesting reevaluation in the intervening period. None of the incident reports indicates whether staff used the reinforcement strategies outlined in the student’s BIP prior to the use of restraint and seclusion, and many of the reports did not document the total time Student H was restrained.
• Student I was restrained 71 times and was secluded 21 times during the 2016-2017 school year, for a total of over 760 minutes. Twenty of those restraints occurred in a one-month period early in the 2016-2017 school year. Seclusions lasted between five minutes and 240 minutes, and seven of the seclusions occurred in the first month of the 2016-2017 school year. There is no documentation of Student I’s IEP team convening to consider the student’s behaviors until four months later. A triennial reevaluation of Student I occurred mid-way through the 2017-2018 school year. The start times, end times, and duration of all seclusion incidents were not recorded consistently in Student I’s incident reports. There were no SQA logs included in Student I’s file, and the incident reports for seclusion incidents did not contain a record of Student I’s behavior at fifteen-minute intervals.

Adding to VDOE’s statewide IEP-related failures, OCR found that of the files for the 28 students whose records it investigated, “SECEP addressed restraint and seclusion directly in the IEP or BIP of only five of the 28 students.” In addition, “OCR’s review indicated that four students who experienced restraint and seclusion had BIPs in place; for one student, the BIP had been developed three years earlier, and, for another student, the BIP was developed in August 2017, after the 2016-2017 school year ended.”

According to OCR, “SECEP’s agreement to change its practices with respect to the use of restraint and seclusion, and its commitment to examine and remedy prior instances where restraint and seclusion of its students may have denied them a FAPE, reflect SECEP’s willingness to serve its students with disabilities. 
SECEP’s commitments to resolve the compliance review include: 

• Formalizing its policy and procedures on the use of restraint and seclusion
• Modifying its recordkeeping system.
• Training staff on SECEP’s revised policy and procedures and new recordkeeping system.
• Reviewing files of currently enrolled students who were restrained and secluded since the start of the 2016-2017 school year to determine, in part, whether any student requires compensatory education for educational services missed due to incidents of restraint and 
• Developing and implementing an internal assessment tool to monitor and oversee SECEP’s use of restraint and seclusion.”

Unfortunately, identifying students since the start of the 2016–17 school year is six years too late. If there’s one thing that COVID and VDOE have taught the residents of Virginia, it is that change is slow and children’s lives aren’t put on pause waiting for change to occur. The harm done to students can last their entire lives.

The letter to SECEP is available here and the resolution agreement is available here.