Fairfax County Public Schools (FCPS) is at fault for systemic failure to implement IEPs division wide.

A Letter of Findings (LOF) released today by Virginia Department of Education (VDOE) cites FCPS' failures to provide compensatory education and reimbursable expenses in a timely manner consistent with IEP implementation regulations.

What Do Parents Need to Know?

In both cases, the reimbursable expenses and compensatory education are related to FCPS' November 30, 2022, resolution agreement with Office for Civil Rights (OCR).

Although the findings address the families who joined the systemic complaint, neither VDOE nor FCPS can ignore noncompliance faced by other families.

For example, in the case of two of the families, VDOE states:

"The IEP team should consider whether the delay in providing compensatory services has caused additional need for remediation in order for the students to have received FAPE."

The same should hold true for other families. If FCPS delayed provision of compensatory education, the families have a right to meet with FCPS to determine if the delays caused addition need for remediation.

VDOE's corrective action plan (CAP) supports the need to address all students impacted, and not solely those included in the systemic complaint:

"Within 30 days of the date of this letter of findings, at the commencement of the school year, and at the end of each of the next three academic quarters, provide a progress report including (i) the number of students with outstanding reimbursements, and the aggregate dollar amount of outstanding reimbursements; and (ii) the number of students with remaining compensatory hours, including the number of such hours owed. The LEA should work with the Corrective Action Specialist to develop the format and to provide any additional information required for assessment of the data."

In addition, VDOE notes the following in the footnote on page two of the LOF:

"Four individual students were identified to us by the Complainant. Three of those students’ files reviewed in addition to the random sample. The fourth student was not identified for this office until May 23, 2024, and we were unable to review that student’s information in time to meet our deadline for issuance of findings. All students brought to our attention are included in the class entitled to relief as set forth below, as well as all similarly situated students who were not identified, and thus, each student’s parent may elect to rely on the systemic relief ordered in this case, as our office has structured the corrective action to address each affected student, whether named or not. However, if the parents of the fourth student wish to file an individual complaint, they are free to do so."

What are the Findings?

VDOE did a rare on-site visit to investigate the systemic complaint that it alleges included a review of 25 files, to include records for the families involved in the systemic complaint.

Regarding reimbursable expenses, VDOE found:

"The division itself established the standard for parent expectations in this instance by publicly establishing a 45-day turnaround as the norm. However, the commencement of the 45-day turnaround appears to have been contingent upon presentation of paid receipts that corresponded to information in the IEPs and upon the parent(s)’ submission of a W-9 form. While accounting practices for public agencies require appropriate documentation for reimbursement as a part of the agency’s responsibility for the administration of public funds, it appears that these requirements were not always clearly understood or communicated, that issues of missing or insufficient documentation were not promptly addressed, such that, in many cases, the 45-day period for processing payments did not commence until long after the parent believed that the reimbursement was in process.

"While all but one of the 25 files reviewed indicate that reimbursement has now been completed, the time elapsed between agreement to the IEP reflecting consent to compensatory services/reimbursement reflected only three payments being made in 45 days or less. All other reimbursements took more than twice as long, with more than 60% being outstanding for more than 150 days, and with several of those taking almost a year to process. . . .

"As a result, we find the LEA to be in noncompliance on a systemic basis for failure to implement IEPs related to parent reimbursement in accordance with the requirements of the regulations."

Regarding compensatory education, VDOE found:

"Of the 25 files reviewed, seven students required additional compensatory services to be provided by the school division. Our file review indicates that services for four of the students have been delivered in full, services for one student have not been completed, but are in the process of being delivered as set out in the IEP, and that services for two students appear not to have been addressed. We will provide specific corrective action for these students under separate cover, and find the school division to be in noncompliance with regard to these students. Because of the wide variability possible in the amount and timing of compensatory services, we do not make a finding that the LEA is in noncompliance on a systemic basis with regard to the provision of compensatory services; however, because of ongoing concerns regarding this matter, we will monitor the provision of compensatory services as a part of our corrective action plan and pursuant to our general supervision authority."

OCR and Systemic Complaint Background

OCR Findings and Resolution Agreement

November 30, 2022, OCR released the findings of its COVID-era investigation into FCPS and its resolution agreement with FCPS. OCR found that FCPS failed or was unable to 1) "provide a FAPE to thousands of qualified students with disabilities," 2) "conduct evaluations of students with disabilities prior to making significant changes to their placements", and 3) "ensure that placement decisions were made by a group of persons knowledgeable about the students and the meaning of the evaluation data."

In addition, OCR determined that "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" and that "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”.

OCR's resolution agreement with FCPS requires FCPS to hold IEP meetings or 504 Plan meetings with students enrolled in FCPS during April 2020 and June 2022 and determine "whether a student was provided regular or special education and related aids and services designed to meet their individual needs during the Pandemic Period."

In the cases of 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," OCR required FCPS to determine what compensatory education the students would need to "return the student to the position the student would be in if the student received services that met his or her individual needs", develop a plan for "providing timely compensatory education", and provide "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."

Delays, Delays, and More Delays

Over a year after OCR released its findings, FCPS has yet to ensure timely provision of reimbursement and compensatory education.

In its response to the complaint filed, FCPS insisted it is in compliance and blamed delays on the "unexpected high number of reimbursements".

Yet, FCPS knew almost two years ago it likely would face such a situation. April 28, 2022, OCR released its findings for its investigation into Los Angeles United School District (LAUSD). The focuses of OCR's LAUSD and FCPS investigation were similar, hence the odds favored similar finding. When OCR determined LAUSD at fault for division-wide discrimination and required it to address compensatory education for students impacted, logic dictated FCPS would face a version of this in the future.

It Takes a Complaint—or Two or Three

FCPS managed to implement just 50% of reimbursements in the year between OCR's November 2022 findings and February 2024.

However, FCPS alleges it implemented an additional 35% of reimbursements in the three months between February and May 2024—an accomplishment that followed two single-family and one systemic complaint on this issue being filed.

February 26, 2024, VDOE released a LOF for state complaint C24-123, which is a single-family complaint based of FCPS' refusal to implement a student's IEP in a timely manner. 

February 27, 2024, the systemic complaint was filed against FCPS. Soon after, another single-family complaint was filed (C24-177). The C24-177 Complainants subsequently joined the systemic complaint and dropped their individual complaint.

March 13, 2024, the February 2024 50% changed to 65%. At FCPS' monthly ACSD meeting, Terri Edmonds-Heard said FCPS had addressed 65% of the reimbursements, but didn't address the outstanding compensatory education, or if the reimbursements addressed were one-time payments or ongoing invoicing.

May 15, 2024, the reimbursement percentage changed to 85%. At FCPS' monthly ACSD meeting, Michael Bloom said FCPS had addressed about 85% of past reimbursements, and that FCPS expected to have 99% of past reimbursements paid by the end of June. Michael added that future reimbursements would continue for more than a year into the future, but failed to address delays in provision of compensatory education.