VDOE Orders FCPS to Stop Delaying Provision of Compensatory Education and Reimbursable Expenses; IEPs Addressing Office for Civil Rights Findings Must Be Implemented

For over a year, Fairfax County Public Schools (FCPS) has refused to fully implement consented to portions of Individualized Education Plans (IEPs) — and treated the implementation of IEPs on a first-come, first-served basis.

That stops now.

What You Need to Know

Office for Civil Rights Findings

November 2020, Office for Civil Rights (OCR) determined FCPS engaged in massive, division wide discrimination between April 2020 and June 2022.

In its letter of findings to FCPS, and in its resolution agreement with FCPS, OCR required FCPS to address the compensatory education needs of students with disabilities resulting from the Section 504 violations identified by OCR in its investigation.

In addition, OCR required FCPS to "provide the student’s parent or guardian 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."

FCPS' Actions Following OCR's Findings

While FCPS did agree to compensatory education and/or reimbursable expenses for some students—and did include the information related to the provision of both within some IEPs and 504 Plans—FCPS refused to ensure provision of the reimbursements and compensatory education in a timely manner.

In doing so, FCPS failed to implement IEPs and 504 Plans in a timely manner.

VDOE's Ruling

December 2023, a former FCPS parent filed a state complaint with VDOE and against FCPS, for failure to implement her Student's IEP. Specifically, FCPS refused to implement the portion of the IEP related to its resolution with OCR, which states FCPS will reimburse the parent for $9,056.70; will reimburse the parent for 114.50 hours of compensatory education, paid at a rate up to $150/hr; and that FCPS will reimburse the parent the related service of transportation at the yearly IRS mileage rate.

Although she'd provided partial consent to the IEP months prior, FCPS refused to implement the IEP.

February 26, 2024, VDOE issued a letter of finding, stating FCPS is at fault for failing to implement the IEP and ordered the following corrective action plan:

"To address the noncompliance finding for Issue 1, this office requests that LEA:

"1. Provides documentation within 30 days that reimbursement for $9,056.70, the agreed upon reimbursement in the August 2023 IEP, consented to on October 9, 2023, has been processed.1 Provide documentation from the LEA’s finance department, not solely an email stating the reimbursement has been processed.

"2. In the next 30 days either work with Parent or identified Student vendor to set up either monthly reimbursement or direct payments to vendor are provided – oversee it until all of the compensatory service that started in January 2024 is completed. If the parties cannot agree, then Parent should provide services receipts and transportation mileage costs on a monthly basis – parent should be reimbursed no later than 45 days after providing the monthly statements.

"3. Create a LEA policy or procedure, if one does not currently exist, to ensure an agreed upon reimbursement or direct payment to a provider is completed no more than 45 days after the identified required reimbursement or invoice document(s) are/is submitted.

"The school division must complete the corrective action plan and submit supporting documentation to the CAP specialist no later than the date set forth above, or if no date is specified, no more than thirty calendar days from the date of this Letter of Findings. In the event the school division anticipates that any portion of the corrective action will require more than thirty days for completion, school division must contact the CAP specialist to provide documentation of the status of the corrective action, and to obtain approval for a revised completion schedule prior to the due date for the CAP. Any subsequent steps required to satisfy the corrective action should be documented, and such documentation submitted to this office on a schedule to be established by the Corrective Action Specialist in consultation with the LEA but should be completed no later than [30 business days from the LOF date unless circumstances warrant otherwise]."

What Else Do You Need to Know?

FCPS Pushed Nondisclosure Agreements

FCPS requested VDOE provide extended time for a resolution period. The parent opposed this request. VDOE ignored the parent and on January 22, 2023, FCPS sent the parent a nondisclosure agreement (NDA), stating it would implement the IEP if the parent signed the NDA and dropped the state complaint. To her knowledge, FCPS wasn't making other parents sign an NDA prior to their student's IEP being implemented, nor was it restricting other parents from discussing the terms of their IEPs publicly.

The parent refused to sign and emailed FCPS concerns about its NDA.

January 23, 2023, FCPS sent the parent a revised NDA. The parent refused to sign and pointed out that the IEP was based on FCPS providing compensatory education prior to the October 2023 IEP being implemented. However, due to FCPS' delays, FCPS needed to address the additional months of November, December, and January, during which FCPS had failed to ensure provision of compensatory education.

January 24, 2023, FCPS sent the parent another agreement. Although it wasn't a non-disclosure agreement this time, it still put requirements on the parent in order for the IEP to be implemented. FCPS would implement the IEP if the parent agreed to its agreement and dropped the complaint—even though the parent had already agreed to the IEP and FCPS already failed to implement it.

The parent continued to advise FCPS that if it wanted her to drop the state complaint, all it had to do was implement the IEP.

FCPS Blames the Parent

Instead of implementing the IEP, FCPS chose to submit a narrative to VDOE in response to the parent's complaint. In it, FCPS blamed the parent and provided false and misleading information to VDOE. However, FCPS did admitted its practice of implementing IEPs in a "queue".

"Due to the unexpected high number of reimbursements, FCPS has hired and appointed additional staff to help with this effort to ensure that the necessary supporting documents were provided and that the tenets of the OCR Agreement were followed by IEP teams and 504 teams in order to process reimbursements. FCPS is processing these reimbursements for out-of-pocket expenses incurred during the Pandemic Period in the order they are received, and as quickly as possible.

"[PARENT]’s reimbursement for out-of-pocket expenses has not been processed yet for several reasons. First, [PARENT] did not indicate agreement with the IEP proposal above until October 9, 2023. Due to the late IEP meeting compared to other COVID compensatory meetings and [PARENT]’s delayed consent decision, her reimbursement had placed her further down in the queue.

"Additionally, FCPS did not receive an accurate and complete W-9 tax form from [PARENT] until January 21, 2024, to establish her in the system so that her reimbursement can be processed. FCPS has established that it can take up to 45 calendar days for payments to be made once the paid invoices and necessary documents have been received. FCPS staff will follow up with [PARENT] directly regarding the status of her reimbursement for out-of-pocket expenses.

"To date FCPS has made three attempts to engage in early resolution with [Parent]. Unfortunately, these attempts have been unsuccessful."

FCPS neglected to tell VDOE the following:

  1. FCPS' "attempts to engage in early resolution" included pushing the parent to sign non-disclosure agreements.
  2. FCPS never contacted parent about the OCR agreement. Parent had left the state and found out about it from friends.
  3. Parent attempted for months to obtain and IEP meeting and FCPS delayed—putting a student no longer enrolled in FCPS further down the "queue".

In addition, FCPS left out its payment terms to vendors.

FCPS has a practice of paying vendors within 30 days. Yet, with IEPs and 504 Plans, FCPS has a minimum 45 day turnaround that has turned into months longer.


Parent's Additional Information

As the final step in her state complaint, the parent submitted additional information to VDOE, which counters FCPS' claims the parent failed on one count after another to provide FCPS the documentation it required.

In addition, it provides more evidence that FCPS' failure to implement her student's IEP isn't isolated to her student. This includes Dawn Schaefer admitting FCPS has addressed just 50% of reimbursements to date, even though both IEPs and 504 Plans are supposed to be implemented in a timely manner.

Interest and Debt

Parents are putting compensatory education services on credit cards and waiting months for payment from FCPS or not paying for services at all because they can't afford to carry any debt. To my knowledge, FCPS hasn't offered to reimburse parents for interest penalties on late credit card payments.

In addition, students owed compensatory education continue to go without. As with the parent in the case at hand, the compensatory education owed was determined months ago. Instead of it being implemented immediately, the student lost more time.

Parting Words

FCPS has offered little to nothing to some families and high five figures in addition to compensatory education for other families. Why so much to some and nothing for others? That's a question perhaps FCPS will one day answer.