UPDATED 3.29.24—VDOE to Investigate Fairfax County Public Schools for Systemic Noncompliance; District Fails to Implement IEPs in a Timely Manner

March 18, 2024: Article published. March 29, 2024: Article updated. Updated information appears below in bold/red.

Fairfax County Public Schools (FCPS), Virginia, again finds itself the focus of a systemic noncompliance investigation.

This time, Virginia Department of Education (VDOE) is investigating FCPS' failures to implement IEPs in a timely manner.

Notably, FCPS has failed to ensure timely provision of compensatory education to students and timely reimbursement of out-of-pocket expenses to parents, even though both appear in IEPs proposed by FCPS and consented to by parents. The compensatory education and reimbursements at the core of the complaint relate to FCPS' resolution agreement with Office for Civil Rights (OCR).

In some cases, parents and students have been waiting more than six months for FCPS to provide reimbursements and/or ensure provision of compensatory education.

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."

What Actually Happened?

January 30, 2024—over a year after OCR released its findings—FCPS admitted in its narrative response to VDOE, for Case # C24-123, that it is implementing the IEPs on a first-come, first-served basis, and that IEPs are in a queue for implementation. In the same narrative, FCPS attempted to justify its delays by stating "IDEA and federal and state implementing regulations do not contain any specific timeline or required number of days for IEP implementation".

In the Supreme Court’s decision for Forest Grove School District v. T.A. (129 S.Ct. 2484 (2009) 557 U.S. 230), Justice Souter addressed permissive language such as “timely manner” and “reasonable time”, which are not specifically defined and thus deficient in their firmness, but which are expected to widely be understood nonetheless:

“When permissive language covers a special case, the natural sense of it is taken to prohibit what it fails to authorize. When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.

“So does anyone who reads the authorization of a reimbursement order in the case of "a child with a disability, who previously received special education and related services under the authority of a public agency." § 1412(a)(10)(C)(ii).[1] If the mother did not mean that the homework had to be done, why did she mention it at all . . ."

Instead of following Souter's logic, FCPS goes on to blame delays on the "unexpected high number of reimbursements" and specifically stated:

"It is noteworthy that FCPS has thousands of COVID-19 reimbursements to process and pay."

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.

February 8, 2024: FCPS staff repeated the “queue” comment, when its finance office emailed Complainant the following:

“The finance team is working diligently to process request in the cue.” [sic]

February 12, 2024, over a year after OCR released its findings, FCPS submitted a letter to parents, stating that it had “almost” processed half of the reimbursements.

Yet, less than a week prior, FCPS led the community to believe it had reimbursed at least 50%.

February 6, 2024, FCPS’ Dawn Schaefer and Terri Edmonds-Heard spoke at a FCPS SEPTA meeting (watch 2.6.28 SEPTA meeting recording). At about the 00:31:00 mark, the following Q&A occurred between SEPTA President Amanda Campbell, FCPS’ Dawn Schaefer, and FCPS’ Terri Edmonds-Heard:

Amanda Campbell: 

Following up, all right, we're gonna we're gonna dive into OCR, the compensatory services reimbursements. I am going to ask that we keep our answers short, because there are a lot of, as short as possible. I know it's complicated. There are a lot of questions. And we're certainly happy to follow up more in email and follow up with the posts later for our members, if it's too complicated to address here. But we do have quite a few questions on this. So we're gonna jump right in. First, just if we can get an a brief overall update on the process, how many staff are working on this? Is there an expected full date of completion? And who are the, who are currently the best contacts for parents? Who wants to know where in the process the reimbursements are?

Dawn Schaefer: 

Thanks for that, Amanda, we, we have a lot of folks working on this part time. Believe it or not, we have one person who's allocated full time for this at this time, and that's one of our finance management technicians.

And otherwise, we have probably, I don't know, Terri, you might have the numbers right in front of you, but it's probably 30 people working part time on this. We do hope that the new OCR plan administrator can start soon. That person has been selected and is still in the process of being hired. And so that would give us some additional assistance. And we're also looking at some other ways to creatively use some funding that was allocated that we can hire a couple other folks to assist. In terms of completion we completed 50% of reimbursements as of Friday, this past Friday, and we are working diligently to complete the rest of them as soon as possible. We have been meeting with the Comptroller and with finance staff, to look at our processes, our financial processes to ensure that they are as smooth as possible. And so just this week, there was a meeting today, in fact, with our staff supporting this to talk about the way that those processes are smoothing out, and so we, we're hoping that things will pick up even more as as we add add more staff and have smoothed out the processes. And I don't know Terri, if you want to jump into

Terri Edmonds-Heard: 

I think you've covered most of it, Dawn. The only thing that I'll add is that we did send a communication out to families who have not received their reimbursement yet, just letting them know we are still working on it. We are committed to getting all of these reimbursements done that we've committed quite a bit of staff to it as well, and that we are working really very hard on that and letting them know you know what they can do to help us to do as well in terms of just documentation if the school team reaches out, you know, to communicate with them too, as well. So that letter went home on yesterday to those families who were still waiting on reimbursement.

At about the 00:39:50 mark of the recording, the following Q&A occurred between SEPTA President Amanda Campbell and FCPS’ Dawn Schaefer

Amanda Campbell: 

“All right, next question on OCR.

I've been trying to get compensatory reimbursements since July. Once I get paid for July through December invoices, I'm concerned about January, which I just submitted. There needs to be some expectation that invoices will be paid within 30 or 60 days. It's too much to ask parents for balances of thousands of dollars for indefinite time period. Is there anything that can be done to make this faster?”

Dawn Schaefer: 

“Thank you for that. And we agree with you. 100%. Last week, I reassigned one of our staff who has been working part time on this to start working on on the future, what we call future reimbursements for services, where families have decided to use a private provider for services that were allocated. And she is processing those. I think I know who may have submitted that question, because we're in touch regularly. But we are working on it. And please feel free to call or email me for a very specific update for your child.”

February 26, 2024: VDOE released a Letter of Finding for state complaint C24-123. Although C24-123 is a single-family complaint, its focus is the same as the systemic complaint at hand. VDOE stated FCPS had 30 days—until March 27, 2024—to take the following steps:

"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. 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."

VDOE's CAP fails to address the noncompliance—failure to implement an IEP in a timely manner—and focuses, instead, on what occurred as a result of the noncompliance. 

March 13, 2024, U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP), released new findings of noncompliance for VDOE, to include a failure to consistently identify noncompliance. In addition, OSEP emphasized VDOE's responsibility to provide a corrective action plan to address the needs of the student in the complaint and "future provision of services to children with disabilities, consistent with 34 C.F.R. § 300.151(b)." VDOE failed to do this—and  noncompliance continued. 

March 13, 2024, 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.

Meanwhile, students continue to go without having their unique needs addressed.

March 15, and 19, 2024: FCPS requested an extension to the LEA response timeline. It did not provide a reason for needing the extension.

March 19, 2024: VDOE approved FCPS' request for an extension, but didn't set a new deadline.

March 27, 2024: FCPS failed to implement the CAP for single-family state complaint C24-123 within the 30-day timeline. Neither VDOE nor FCPS contacted the parent to advise of next steps. 

March 28, 2024: FCPS submitted its response for systemic complaint C24-166. FCPS both denied the allegation against it—failure to implement IEPs in a timely manner—and stated it is committed to reimbursing parents. FCPS failed to address the following:

  • compensatory education students haven't received and/or that has been delayed;
  • gaps between its proposals and provision of services and/or payments;
  • additional compensatory education to address the gaps between its proposal and the actual provision of services;
  • reimbursement of credit card and/or other fees parents have incurred while paying for tutoring FCPS approved and was supposed to reimburse; and
  • interest on reimbursement payments it delayed. 

FCPS again admitted it is implementing IEPs in a queue—and again exhibited it either doesn't grasp the severity of the violation or thinks excuses are okay.

The issue is whether or not FCPS violated IDEA, not if the violation was on purpose. IDEA is not contingent on intent. A car accident is usually unintentional, but the striking vehicle must bear its responsibility for the violation and damage.