Unpacking VFOIA-10208 and Office for Civil Rights’ Monitoring of Fairfax County Public Schools
FCPS FOIA release shows that—more than two years after OCR issued findings against the district for its Pandemic Period practices—FCPS continued to struggle to implement OCR's resolution agreement.
In November 2022, U.S. Department of Education’s Office for Civil Rights (OCR) found Fairfax County Public Schools (FCPS) applied unlawful standards during the “Pandemic Period”, substituting Section 504’s Free Appropriate Public Education (FAPE) requirements with “diluted standard[s]” like “FAPE in light of the circumstances” and “good faith reasonable efforts.”
More than two years later, FOIA records released by FCPS support what state complaints, parent records, and other documents already indicated. While it was supposed to be addressing the needs of students it failed, FCPS continued to miss deadlines, misreport data, and even tried to limit parents’ rights by redefining IDEA’s two-year statute of limitations.
Mismatched Standards and Definitions
In November 2022, OCR found Fairfax County Public Schools (FCPS) applied unlawful, “diluted”, standards during the “Pandemic Period”.
A year later, in a November 10, 2023, email, FCPS told OCR it was “working hard to ensure students receive the services and families receive the compensation their teams determined were necessary”. Two months later, in its January 30, 2024, letter responding to Virginia Department of Education (VDOE) state complaint C24-123, FCPS again leaned into diluting legal standards to justify delay:
“The IDEA and federal and state implementing regulations do not contain any specific timeline or required number of days for IEP implementation.”
In addition to a diluted standard, this statement is another example of FCPS attempting to wordsmith its way out of noncompliance. It is technically correct that Individuals with Disabilities Education Act (IDEA) doesn’t state a specific number of days (e.g., “within 10 days”). However, IDEA is clear that IEPs must be implemented “as soon as possible” after they are developed. FCPS’ claim that no standard exists mirrors the same FERPA-diluting standards that preceded OCR’s findings against it.
SIDEBAR:
OCR’s November 2022 findings against FCPS state the following about FCPS’ “diluted standards”:
“OCR found that the Division failed or was unable to provide a FAPE to thousands of qualified students with disabilities in violation of Section 504. Specifically, OCR found that during remote learning, the Division failed or was unable to provide a FAPE to thousands of qualified students with disabilities and failed to conduct evaluations of students with disabilities prior to making significant changes to their placements and to ensure that placement decisions were made by a group of persons knowledgeable about the students and the meaning of the evaluation data, in violation of the Section 504 regulation at 34 C.F.R. §§ 104.33 and 104.35; (2) 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, in violation of 34 C.F.R. § 104.33; and (3) 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. In addition, the evidence obtained to date raised compliance concerns that staffing shortages and other administrative obstacles resulted in non-provision of some FAPE services for students with disabilities; and that the Division did not accurately or sufficiently track services provided to students with disabilities to enable the Department to ascertain the Division’s compliance with 34 C.F.R. § 104.33, as required by 34 C.F.R. § 104.61 (incorporating 34 C.F.R. § 100.6(b)).”
Sec. 300.323 of IDEA states:
“Each public agency must ensure that—As soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child’s IEP.”
In its guidance document Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, OCR states:
“Under Section 504, FAPE is the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of non-disabled students are met and are based on adherence to procedures governing educational setting, evaluation and placement, and procedural safeguards.35 Implementation of an IEP developed in accordance with the IDEA is one means of meeting the Section 504 FAPE standard.”
In the same January 30, 2024, letter, FCPS blamed the “late consent decision” of the parent who filed the complaint, for delays placing her “further down in the queue”:
“Due to the late IEP meeting compared to other COVID compensatory meetings and [REDACTED] delayed consent decision, her reimbursement had placed her further down in the queue. . . . To date FCPS has made three attempts to engage in early resolution with [REDACTED]. Unfortunately, these attempts have been unsuccessful.”
In reality, the parent had spent about eight months trying to schedule a meeting after FCPS failed to notify her. (She learned of eligibility for a meeting from a friend). The “three attempts” FCPS cited required the parent to sign Non-Disclosure Agreements (NDAs) to get IEP implementation—something neither IDEA nor Section 504 allows.
Later, in December 2024, FOIA records indicate FCPS told OCR it had sent letters to withdrawn or graduated students—but families and students still report never receiving one to this date.
The record (FOIA responses and other documentation) shows that—just as FCPS often proposes IEP goals focused only on outcomes—the district focused on checking off OCR’s required outcomes rather than building the skills needed for true compliance. Continuing to push diluted standards is evidence of this.
Resolution Agreement vs. FCPS Practice
Under its November 30, 2022, Resolution Agreement with OCR, FCPS agreed to:
Appointment of a Plan Administrator “who has Section 504 and Title II expertise”.
Create a plan that “(1) determines whether students with disabilities received an appropriate education to meet their individual needs from April 14, 2020, through June 10, 2022 (Pandemic Period), (2) makes individualized determinations for each student with a disability regarding whether compensatory education and/or related services (“compensatory education’) is owed . . .”
Notify parents or guardians within 30 days of OCR approval of FCPS’ written notification. This notification was suppressed to be “be provided without request by the parents or guardians within 30 calendar days of OCR’s approval of the written notification”.
Develop an electronic tracking system by January 17, 2023, “that tracks each determination made by IEP teams or Section 504 knowledgeable committees regarding compensatory services, including the reason for the determination.”
FCPS’ later admissions show they were not meeting these requirements. They missed early deadlines, did not provide notification to all parents or guardians or graduated students, and were still improvising data reviews more than a year after the resolution agreement’s deadlines.
By late 2023, FCPS admitted its data was corrupted and unrecoverable, and its reports were not pulling accurate information. In its November 10, 2023, email to OCR, FCPS stated:
“We began the analysis of the data from our internal audit; unfortunately, the data was corrupted and the information gathered on the nearly 400 students is difficult to use in its current state.”
In the same email, FCPS said the audit was on hold due to corrupted data and the plan administrator’s departure, promising an update at a December 4, 2023, meeting. OCR had to follow up January 10 and January 31, 2024, before FCPS responded. February 6, 2024, FCPS emailed OCR “apologies for the delay.” Days later FCPS admitted its “report is no longer pulling correct data” (Feb. 9, 2024, email to OCR) and “internal data cannot be recovered” (Feb. 16, 2024, email to OCR).
Sidebar:
FCPS’ admissions of corrupted and unrecoverable data in 2023–25 are not the first time the district has shown systemic failures in maintaining accurate records or complying with basic legal standards. In early 2020—before COVID closured resulted in distribution of computers to both general education and special education students—FCPS was caught illegally charging a “technology fee” to students, including students with disabilities whose IEPs and 504s required assistive technology. After parents raised the issue, FCPS agreed to refund families—returning over $34,000, a process that took almost six months to complete.
Important: FCPS initially limited refunds to families of students with IEPs, failing to reimburse all families affected until parents of students who had 504 Plans again raised the issue. VDOE later declined to investigate because it claimed FCPS had “corrected” the action, even though there was no evidence FCPS had addressed the root cause: internal counsel had advised leadership that charging the fee was permissible.
This episode shows that FCPS’ compliance failures are not limited to OCR’s 2022 findings. Even before the pandemic, FCPS had to be pressured by parents and the state to correct basic errors in tracking, compliance, and reimbursement.
Almost a year later, in a January 31, 2025, email to OCR, FCPS continued to report tracking issues and outstanding meetings:
“. . . every eligible student enrolled during the pandemic period was reviewed. For the reasons stated below, our current data indicates 283 meetings outstanding. However after auditing our records the correct number of outstanding meetings is 17. I am taking the necessary steps to rectify the remaining 17 cases and working with our data management team to determine how to adjust the coding to avoid the errors highlighted in my previous communication.”
In its January 31, 2025, email to OCR, FCPS also wrote:
“With respect to item 4 below, I require additional time to review and correct these items with school teams.”
More than two years after OCR found it in noncompliance, FCPS continued to need “additional time” to address its noncompliance.