Fairfax County Public Schools (FCPS) entered into a Resolution Agreement with the United States Department of Education Office for Civil Rights regarding the provision of services to students with disabilities during the global COVID-19 Pandemic. Students with disabilities are entitled to a free appropriate public education (FAPE) and may require compensatory education as a remedy if a student was not provided a FAPE during the COVID-19 pandemic, an unprecedented time for students, staff, and families across the nation. 

The FCPS COVID-19 Compensatory Education Plan was created to support the needs of students with disabilities (SWD) whose learning was impacted during the COVID-19 Pandemic. Individualized Education Program (IEP) teams and Section 504 Plan knowledgeable committees will determine whether SWD, who had an IEP or 504 Plan during the Pandemic Period (April 14, 2020 - June 10, 2022), received an appropriate education to meet their individual needs during the Pandemic Period. The IEP team or Section 504 Plan knowledgeable committee will also determine whether compensatory education and/related services are owed to SWD as a remedy. The Plan below describes, for FCPS staff, students, and parent/guardians, the efforts FCPS will undertake to consider and address the compensatory education needs of SWD.

Section I: Criteria for Determining Provision of FAPE and Compensatory Education

• A. To determine the provision of FAPE and compensatory education, each IEP team or Section 504 Plan knowledgeable committee must consider, at minimum, the following criteria:
  Note: Parents/guardians will have access to information recorded by FCPS, if any, regarding the amount of special education and/or related aids and services provided to the student during the Pandemic Period, including IEP and Section 504 Plan service logs.
  • 1. Did FCPS fail to provide the student with the regular or special education and related aids/services required by the student's Section 504 Plan or IEP that was in effect at the beginning of March 2020?
    • a. Did the student receive the amount and type of the regular or special education, and related aids/services that were required by the Section 504 Plan or IEP that was in effect at the beginning of March 2020.
      • i. The services provided by parents or guardians during the Pandemic Period will not be counted as services provided by FCPS that were required by existing IEP/504 Plans. 
  • 2. Were changes made to the student's IEP or Section 504 Plan during the Pandemic Period (Temporary Learning Plans (TLPs), Virtual IEPs, or other remote learning plans), particularly where changes resulted in lesser services being provided to the student than the Section 504 Plan or IEP in effect prior to the changes?
  • 3. For students with IEPs, was goal progress impacted by remote learning? To make this individualized determination, IEP teams will consider, at minimum:
    • a. Present levels of academic achievement and functional performance.
    • b. Previous rate of progress toward IEP goals pre-Pandemic Period.
    • c. Documented frequency and duration of special education and related services provided to the student prior to the service disruptions caused by the COVID-19 Pandemic.
• B. If a student did not receive the regular or special education and/or related aids/services designed to meet their individual educational needs during the Pandemic Period, the IEP team or Section 504 Plan knowledgeable committee will:
  • 1. Make an individualized determination regarding what compensatory education the student needs to return the student to the position the student would be in if the student received services that met his or her individual needs. 
  • 2. State the factors considered in determining any compensatory education owed to the student.
  • 3. Develop a plan for providing timely compensatory education. 
    • a. The team may consider recovery services already being provided as a factor in determining compensatory education if those recovery services, based on an individualized determination of the student's compensatory education needs, address the specific individualized needs of the student.
    • b. When the recovery services already being provided do not address the specific, individualized compensatory education needs of the student, the team cannot directly subtract provided recovery minutes from the total amount of compensatory education the team determines is needed.
    • The team will include an appropriate and reasonable timeframe for the completion of the agreed-upon compensatory services.
  • 4. Provide the student's parent/guardian notice of the procedural safeguards, including the right to challenge the IEP team or Section 504 Plan knowledgeable committee’s determination through an impartial hearing.
  • 5. Provide the student's parent/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 IEP or Section 504 Plan by private or non-FCPS personnel that were not provided by FCPS during the Pandemic Period. 

Section II: Tracking Mechanisms 

• A. FCPS will develop a data tracking system:1. By January 17, 2023, the data tracking system will:
  • a. Track each determination made by IEP teams and Section 504 Plan knowledgeable committees regarding compensatory services, including the reason for the determination.
  • b. Track the exact minute, type, and date of related aids and services provided to each SWD who requires, as determined by the IEP team or Section 504 Plan knowledgeable committee, compensatory education.
  • c.  Allow for the creation of weekly reports that show the number of minutes of special education, related aids, or services that are required by the IEP or Section 504 Plan for compensatory education, the actual service minutes provided, the type of services, and service date; and the corresponding compensatory services specific to minutes, type, and date of provision for services.
• B. FCPS will train and/or provide written guidance to relevant division level and school-level staff on the use of the compensatory education tracking system by March 1, 2023.

Section III: Division Staff Training and Parent/Guardian and Stakeholder Outreach 

• A. FCPS will develop and implement division staff training/guidance and will implement an outreach plan to foster stakeholders’ understanding of FCPS’ COVID-19 Compensatory Education Plan.
  • 1. Division Staff Training and Guidance: FCPS will provide written guidance and/or training regarding the Plan and criteria for determining compensatory services, and the data tracking process to all relevant division-level and school- level staff who have responsibilities under Section 504 and Title II. The guidance and training will include information about:
    • a. FCPS’ commitment to implement the Plan as part of its obligation to provide a free appropriate public education for students with disabilities
    • b. The distinction between recovery services and compensatory education
    • c. Compensatory education service determinations, including the criteria IEP teams and Section 504 Plan knowledgeable committees will used.
    • d. The requirement that staff input data into the tracking system.
    • e. Compensatory education being an equitable remedy to address the inability or failure of FCPS to provide appropriate services to a student with a disability during the Pandemic Period
    • f. FCPS staff’s role in implementing the Plan
  • 2. Outreach Plan:
    • a. FCPS will ensure that parents/guardians and other stakeholders are informed about the Plan, including FCPS’ processes for resolution consistent with the requirements of IEP and Section 504 Plan processes, regarding disputes arising from compensatory education determinations and utilizing FCPS existing points of contact for addressing parent/guardians questions and concerns. 
      • i. Within five (5) calendar days of OCR's approval of the Plan, FCPS will announce in a public statement to all parents and guardians - including all parents and guardians of students with disabilities enrolled in FCPS during the Pandemic Period - that FCPS has created a Plan to determine whether compensatory education is owed to students with disabilities due to the Pandemic Period and FCPS will actively work with parents/guardians of students with disabilities to make the determinations discussed in the Plan.
    • b. The existing FCPS points of contact for addressing parents/guardians inquiries and concerns include but are not limited to the following:   
      • i. FCPS Office of Special Education Procedural Support
      • ii. FCPS Parent Resource Center
      • iii. FCPS Office of the Family and Student Ombuds
      • iv. Plan Administrator
    • c. The Plan Administrator will document, track, and address concerns and/or complaints regarding the implementation of the Plan that are submitted to the FCPS points of contact.
    • d. The Plan Administrator will coordinate the communications outreach to parent/guardians and other stakeholders about the Plan, including the following:
      • i. In order to educate parents/guardians on the Plan and the process forPandemic Period compensatory education assessments and determinations to be completed through the IEP and Section 504 processes, FCPS will provide, at public meetings, an overview of the Plan, including informal and formal resolution consistent with the requirements of IEP and Section 504 processes for disputes arising from compensatory education determinations. FCPS will convene three such community education public meetings, which will take place within ninety (90) business days of the Resolution Agreement date.
      • ii. FCPS will create a public-facing website with links to the Plan itself, as well as notifications of the three (3) formal parent/guardian public meetings described above and contact information for addressing concerns with FCPS points of contact. This will be posted on the FCPS homepage, each school's website, and on the special education webpage, and will be accessible for persons with disabilities and translated in the major languages spoken in FCPS.
      • iii. FCPS will provide a targeted notification to parents/guardians of all students with IEPs or Section 504 Plans within 30 calendar days of OCR's approval of the written notification. The notification will be translated into the major languages spoken within FCPS.The notification will include: 
        • a. A statement that FCPS will convene meetings for all FCPS students who had an IEP or Section 504 Plan during the Pandemic Period to discuss IEP and Section 504 Plan implementation and consideration of Compensatory Education services. For students who are no longer with FCPS, the notification will state that a meeting will be held at the request of the eligible student, parents or guardians.
        • b. Process for all IEP teams and Section 504 Plan knowledgeable committees to make an individualized determination regarding whether Pandemic Period compensatory education is owed to a student.
        • c. Process for parents/guardians to request reimbursement for out-of-pocket expenses incurred to provide services required by IEPs or Section 504 Plans by private or non-FCPS personnel that were not provided during the Pandemic Period.

Earlier Statement From December 14, 2022

Fairfax County Public Schools (FCPS) has entered into a Resolution Agreement with the United States Department of Education Office for Civil Rights regarding compensatory education for students with disabilities during the COVID-19 pandemic. 

Students with disabilities are entitled to a free appropriate public education (FAPE) and may require compensatory education to remedy any educational or other deficits that resulted when a student with an individualized education program (IEP) or Section 504 Plan did not receive the regular or special education, and/or related services designed to meet their individual educational needs during the Pandemic Period (April 14, 2020 - June 10, 2022). The COVID-19 pandemic resulted in a learning disruption that impacted schools around the world.

FCPS has created a plan to determine whether compensatory education is owed to students with disabilities due to the Pandemic Period, and will actively work with parents, guardians, and eligible adult students with disabilities to make the determinations discussed in the plan.

Impacted families will be contacted directly with the next steps. Questions can be emailed to [email protected].

Earlier Statement From November 30, 2022

The Office for Civil Rights (OCR) in the U.S. Department of Education has published a Resolution Agreement with Fairfax County Public Schools (FCPS) regarding the provision of special education services during the global COVID-19 Pandemic. 

As a result of this agreement, FCPS will be convening Individualized Education Program (IEP) and Section 504 Plan meetings for all current students with disabilities to determine if compensatory services are warranted. 

The division will also offer IEP meetings and Section 504 Plan meetings to all students with disabilities who graduated or left the division during the Pandemic Period (April 14, 2020 - June 16, 2022).

The COVID-19 pandemic resulted in a learning disruption that impacted schools around the world as they tried to balance the need for health and safety to combat the transmission of the COVID virus while continuing to support students’ academic, social, and emotional growth. In an effort to ensure continued support for students during an unprecedented time, FCPS implemented temporary learning plans for all students with IEPs in April 2020.

Following the release of the VDOE's Recover, Redesign, Restart 2020, FCPS developed a Return to School Plan that prioritized the return of students with disabilities to the brick-and-mortar setting to ensure students with the greatest need were able to be served in person as soon as it was safe to do so. When students returned to in-person instruction, FCPS began to conduct IEP and 504 plan meetings, as initiated by parents/guardians or school staff, to consider the need for recovery and/or compensatory services. 

As we emerge from the global pandemic, FCPS remains committed to working diligently to provide the support needed to ensure each and every student recovers from learning loss. FCPS has and will continue to leverage resources to ensure students with the greatest need receive prioritized support for enhanced outcomes. 

Additional information regarding the process for IEP and 504 Plan meetings, criteria for considering compensatory education as a result of the COVID-19 pandemic, and points of contact for questions will be sent directly to parents/guardians of students with IEPs or 504 plans or eligible students (i.e. students 18 or older with an IEP or 504 plan).

If you have questions, please email [email protected].

Read the OCR news release.