FCPS Makes Case Against Providing Compensatory Education, FAPE, and PWNs
May, 18, 2020, Virginia Department of Education opened an investigation into Fairfax County Public Schools. FCPS’s response argues against providing compensatory education related to COVID closures.
May 18, 2020, Virginia Department of Education (VDOE) issued a Notice of Complaint (NOC) in response to a systemic complaint filed on behalf of six Fairfax County Public School (FCPS) students. The issue? Whether FCPS properly provided services to students with disabilities during the shift to distance learning in spring 2020.
In its response, FCPS made a case AGAINST providing compensatory education in response to the cessation of in-person instruction during the 2019-20 school year, based on an argument that schools weren't open and FCPS isn't responsible for closed and/or partial days.
In addition, it states that:
"While Taken from IEPs, TLPs Are Neither IEPs Nor IEP Amendments, and Accordingly Do Not Require Parent Consent or Prior Written Notice."
Let's talk about comp ed first.
Compensatory Education
FCPS cites VDOE’s FAQ 025-12, 34 CFR § 300.106(b), and 8 VAC 20-81-10 in support of the following statement:
“. . . the Services page in each student’s IEP stipulates that FCPS 'will not provide or compensate for services missed on days when schools are closed due to holiday, inclement weather, or for reduced services that are the result of a partial day schedule.'"
Under such reasoning, reduced services could occur as the result of a partial day service — and FCPS wouldn't have to make them up.
For example, on those two-hour early release days before holidays, a child with a behavior intervention plan (BIP), as one example, might not have it implemented. After all, if it is a partial day, "reduced services" could occur, leaving any child with an IEP in a bad position, unable to do anything about their rights being violated because their IEP contains a concerning clause.
FCPS went on to state:
“Virginia Department of Education’s FAQ 025-12 states that there is no expectation that a school will provide services when the school is closed, whether planned or in unplanned emergency situations. See e.g., Smith v. James C. Hormel School of Virginia Institute of Autism, 2009 WL 4799738, at *FN 26 (W.D. Va. Dec. 8, 2009) (where the school was closed for a holiday break, no educational services could be lost during the closure); also Student with a Disability Dep’t of Defense-Defense Legal Servs. Agency, 109 LRP 47582 (2008) (further reasoning that when a school calendar is compressed, “it is not surprising that special services might also be compressed or reduced. Such a reduction does not indicate disorganization or pettiness or behalf of the school, but rather the practical result of the facts.”)”.
FCPS left out important information from VDOE’s FAQ 025-12, which also states:
“A school division’s obligation to provide specific, quantifiable services in accordance with an IEP is an enforceable obligation. In the events noted above [inclement weather, emergency situations, holidays, or teacher workdays], a holiday is the only event that has been addressed by the courts. A Virginia federal district court has ruled that no services are required during Thanksgiving or Christmas Break. (Smith v. James C. Hormel School of the Virginia Institute of Autism and Greene County School Board, 2009, U.S. District Court, LEXIS 114892, aff’d in relevant part 2010 U.S. District court, LEXIS 29026). It is reasonable to apply this same standard to Spring break and designated holidays, such as Columbus Day, when those holidays are so noted on the school division’s school year calendar as a planned closure. . . .
"As part of general practice, school divisions may "bank" instructional hours in calculating what constitutes a regular school year to ensure that the division meets the number of instructional hours/days. If the unscheduled closures exceed this "banked" time, the school division is required to make up the missed time for students in general education, as well as special education. Therefore, IEP services that were not provided on a day of closure must be provided on the school division’s make-up days (whether banked or additional).”
Per FCPS's citing of "Student with a Disability Dept of Defense-Defense Legal Servs. Agency, 109 LRP 47582", the FCPS calendar was not compressed. FCPS had “banked” (per VDOE’s FAQ 025-12) enough snow days into its calendar that it was able to continue to the planned end of the school year by applying those snow days to the days missed between Governor Northam’s 3.13.20 directed closure and FCPS's launch on its online campus in April.
Schools were open and FCPS had a responsibility to implement IEPs in full or on make-up days.
FCPS's decision to provide students from 1 to about 3 hours of instruction a few days a week, depending on the students’ grade, was a choice made by FCPS. It could have chosen more. (This is outlined in “FCPS Distance Learning Plan”)
April 27, 2020: FCPS School Board Member Rachna Sizemore Heizer sent an email stating:
“The School Board & FCPS are mandated by Virginia law to annually provide a public education for 180 days, or a minimum of 990 hours. With the Governor’s initial (mandatory) 2 week closure, the annual built-in hours for inclement weather have been expended. Thus, FCPS must (and shall) continue to provide student instruction until the end of the designated school year.”
See Virginia Code related to this, too:
8VAC20-131-150. Standard School Year and School Day. A. The standard school year shall be 180 instructional days or 990 instructional hours. The standard school day, including passing time for class changes and excluding breaks for meals, shall average a minimum of five and one-half instructional hours for students in grades 1 through 12 and a minimum of three hours for kindergarten. Recess may be included in the calculation of required instructional hours for elementary school, provided that recess does not exceed 15% of the required instructional hours. B. All students in grades 1 through 12 shall maintain a full day schedule of classes (5-1/2 hours), unless a waiver is granted in accordance with policies defined by the local school board.
Per 34 CFR § 300.106(b); 8 VAC 20-81-10:
“School day” is defined as “any day, including a partial day, that children are in attendance at school for instructional purposes. The term has the same meaning for all children in school, including children with and without disabilities.”
FCPS' also cites VDOE’s Frequently Asked Questions – COVID-19 & Virginia Public Schools, current through June 1, 2020, to include the quote:
“Positive proactive strategies to continue engagement in learning are not a form of instruction/instructional day and thus would not require school divisions to offer FAPE. If a school division does begin to offer instructional services by alternative means[,] the division will remain responsible for [FAPE] of its students eligible for special education services with an [IEP].”
FCPS continued to cite:
“ . . . nor are schools “open” – in a way that would constitute a full “school day”, even on a virtual basis.
April 28, 2020: During his interview with Kojo Nnamdi, Superintendent Scott Brabrand stated,
“And we have had really two amazing great days of learning this week. And I expect it to continue for the remainder of the fourth quarter here as we close out the school year . . . ”
He said “day”, not half-day or partial-day or any other type of day. He stated, too, that it was to be the normal for a long while.
After Governor Northam ordered the cessation of in-person instruction, FCPS chose what that would look like for its division — and then its online launch blew up in its face not once, but a number of times.
Rather than updating IEPs, FCPS introduced Temporary Learning Plans (TLPs) without parent consent or prior written notice—despite federal law requiring notice for any change in FAPE (Free Appropriate Public Education).
TLPs and Prior Written Notice
In that same response to the systemic complaint, FCPS states:
While Taken from IEPs, TLPs Are Neither IEPs Nor IEP Amendments, and Accordingly Do Not Require Parent Consent or Prior Written Notice.
Let's go back to Smith v. James C. Hormel School of Virginia Institute of Autism, which is a case that FCPS cited in its response to this complaint (see above). FCPS left this portion out of its response:
“Prior Written Notice must be given to the parents of a child whenever the LEA proposes to initiate or change the identification, evaluation, or placement of the child, or the provision of FAPE to the child. 20 U.S.C. 1415(b)(3).”
The TLPs issued by FCPS all indicate that FAPE will change for the students, that students will no longer have their IEPs implemented. They specifically state:
“This Temporary Learning Plan does not take the place of your child's Individualized Education Program (IEP), and it does not contain the same services and accommodations provided for in your child's IEP. However, it does identify the continuity of learning services and consultation that will be provided for your child between now and the end of the school year. . . . When school resumes, your child's current IEP will go back into effect.”
Per Smith v. James C. Hormel School of Virginia Institute of Autism and 20 U.S.C. 1415(b)(3) Prior Written Notice should have been provided to every child in FCPS whose IEP was put on hold, resulting in a change in FAPE.
And, FCPS admitted numerous times that it knew FAPE was changing. In its response to the systemic complaint, it states:
"FCPS advised that what constitutes FAPE for each student will necessarily look different in light of the current pandemic and the closure of schools.”
FCPS Procedural Support Liaison (PSL) Katherine Harris emailed: “FAPE are not required during the two weeks starting Monday, March 16. This means no IEP meetings will be occurring during time, either.”