Virginia's Noncompliance Continues; U.S. Dept. of Ed. Issues New Findings Documenting State's Failures

U.S. Department of Education (USDOE) continues to find Virginia Department of Education (VDOE) in noncompliance with Individuals with Disabilities in Education Act (IDEA).

July 18, 2024, USDOE's Office of Special Education Programs (OSEP) issued another status letter to VDOE that addresses the state agency's continued noncompliance with IDEA. The status letter relates to a finding made earlier this year and VDOE's failure to fully address the corrective actions required in the finding.

This marks four years of OSEP making findings against VDOE, four years of VDOE failing to correct noncompliance identified by OSEP, and four years of VDOE failing to be transparent with the public about noncompliance findings by OSEP.

Latest Findings & Lack of Transparency

March 13, 2024, OSEP released the findings of its most-recent investigation into VDOE. Although OSEP issued numerous findings and status letters to VDOE during the preceding four years, to Special Education Action's knowledge, VDOE did not publish them. VDOE did publish the March 13, 2024, findings, and VDOE's response letter to OSEP, on its site after Special Education Action submitted a FOIA request.

May 22, 2024, VDOE submitted documents to OSEP that allegedly addressed the corrective actions required in the March 13, 2024, findings. VDOE did not publish its response to OSEP.

July 18, 2024, OSEP issued a status letter in response to VDOE's May 2024 documentation. VDOE did not publish the status letter.

The findings in the July 18th letter are notable because they focus on VDOE's long-term noncompliance regarding state complaints and its refusal to allow due process to be filed against VDOE.

Filing Due Process Against VDOE

Virginia's regulations have long-restricted state complaints and due process to local education agencies (LEA) and school divisions. However, IDEA states that complaints and due process can be filed against a "public agency".

In its March findings, OSEP emphasized that the definition of "public agency" extends beyond LEAs and school divisions:

"Under 34 C.F.R. § 300.33, the definition of public agency includes the SEA, LEAs, ESAs, nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities."

OSEP stated VDOE must revise its regulations "as soon as possible but in no case later than one year from the date of OSEP's 2024 DMS report"—and must "comply with 34 C.F.R. §§ 300.33 and 300.507 throughout the FFYs 2023 and 2024 grant periods."

This marked a significant change for families whose repeated attempts to hold VDOE accountable for noncompliance have been blocked by VDOE's noncompliance.

The continued noncompliance identified in the July status letter follows below:

"Specifically, although VDOE indicates in the introduction that complaints may be filed against LEAs and other public agencies, there are instances in the document that the term LEA is used instead of LEAs and other public agencies. OSEP is concerned that this inconsistency may not clearly indicate that a State complaint may be filed against an LEA, SEA, or any other political subdivisions of the State that is responsible for providing education to children with disabilities. The State must submit revisions to the guidance that addresses this inconsistency as soon as possible."

State Complaints

The March 2024 findings found the following:

"OSEP finds that, in resolving State complaints, the State does not consistently identify and require correction of all noncompliance with IDEA requirements identified through complaint resolution when the noncompliance was not specifically alleged in the complaint. This practice is inconsistent with the requirements in 34 C.F.R. §§ 300.149, 300.151, 300.153, 300.600 through 300.602, and OSEP guidance."

This has been a long-term problem with VDOE. In 2020, OSEP had to remind VDOE that "Completely ignoring credible allegations of noncompliance is not a reasonable method of exercising the State's general supervisory responsibilities.” OSEP issued this statement within its June 23, 2020, findings for an earlier investigation it conducted. Although VDOE had no later than one year from the date of the findings to submit evidence of implementation of corrective actions, the noncompliance continued.

For example, in 2020, a systemic complaint against Fairfax County Public Schools (FCPS), Virginia, alleged that its COVID-era practice of refusing to address compensatory services until after "normal school operations resume[d]" would deny FAPE to kids who couldn't wait for the opening of brick-and-mortar buildings to have their needs addressed. VDOE refused to investigate the allegation after determining, "This allegation is speculative and premature and will not be included in the complaint investigation."

Two years later, in 2022, Office for Civil Rights (OCR) found FCPS at fault for massive noncompliance and cited the 2020 systemic complaint in its findings. OCR's investigation examines some of the very issues raised in the 2020 systemic complaint, for which VDOE refused to find FCPS in noncompliance and/or refused to investigate.

According to the March findings, VDOE advised OSEP that it "has a process whereby the State’s monitors are informed of such additional noncompliance" and that VDOE "had received objections from LEAs in the past about making a finding of noncompliance on an issue not included in the original complaint, and the LEA argued it was not on notice of the issue." In addition, VDOE alleged it "has other mechanisms for addressing the noncompliance." However, VDOE acknowledged the need to amend its practices and "'work on a way to make sure its complaint procedure' is implemented in a way that 'affords a degree of fairness to the school division without compromising the responsibility to provide [a free appropriate public education] FAPE to the student.'"

The July status letter points out the following continued problems:

"On May 22, 2024, the State submitted to OSEP revised Complaint Resolution Procedures (May 2024). However, the revised procedures do not describe how the State will both review for and ensure the timely identification of all noncompliance with IDEA requirements found through its complaint resolution that was not included in the complainant’s allegations consistent with 34 C.F.R. §§ 300.149, 300.151, 300.153, 300.600 through 300.602 and OSEP guidance. The State must submit revised procedures that address this concern as soon as possible."

VDOE's Background of Noncompliance

In 2018, Virginia's Joint Legislative Audit and Review Commission (JLARC) announced its intention to investigate VDOE on two counts. Around that time period, USDOE started investigating VDOE, too. All three of these investigations were preceded by years of allegations of noncompliance filed by parents throughout the state. No compelling incident occurred in 2018 to precede the decisions to launch these investigations. They were a long time in the coming. Hence, when the National Assessment of Education Progress (NAEP) data was released in October of 2022, Virginia parents weren't surprised to find a downward trend in data that went back to 2017. Virginia's education system had been rotting long before COVID and 2017.

May 2019, USDOE OSEP conducted an on-site monitoring. June 23, 2020, USDOE OSEP included the results of its May 2019 monitoring in its publicly released Differentiated Monitoring and Support findings on VDOE, in which it put VDOE on notice of its failure to comply with requirements under Individuals with Disabilities Education Act (IDEA). Among its findings, USDOE OSEP faulted VDOE for ignoring credible allegations of noncompliance. In response, VDOE issued a ten-page letter from Superintendent of Special Education and Student Services Samantha Hollins, which included false and misleading information, rather than an immediate dedication to remedying noncompliance. (Additional reading: State officials says special education is a ‘core priority.’ Parents and advocates beg to differ)

October 5, 2020, JLARC released its findings of “Operations and Performance of the Virginia Department of Education." This was followed by its December 14, 2020, release of its findings of “K-12 Special Education in Virginia".

Also in 2020, VDOE refused to investigate credible allegations of noncompliance about FCPS's COVID practices and dismissed federal guidance regarding special education-related practices. After a systemic complaint was filed with VDOE, it chose to ignore and refuse to investigate the very issues for which Office for Civil Rights (OCR) later found FCPS in noncompliance in 2022. For other issues alleged in the complaint, VDOE dismissed federal guidance cited by the parents. OCR later cited this federal guidance in support of its 2022 findings against FCPS. Instead, VDOE stood by while 28,000+ students in FCPS alone were denied FAPE, relationships between educators and parents deteriorated, and families struggled emotionally and financially to help their children. (Additional reading: Portrait of a Systemic Complaint, Part I: Parents’ Complaint Against Fairfax County Public Schools, Portrait of a Systemic Complaint, Part II: Virginia Department of Education’s Notice of Complaint, Portrait of a Systemic Complaint, Part III: Virginia Dept. of Ed. Bends Rules for Fairfax County Public Schools, and Portrait of a Systemic Complaint, Part IV: FCPS’ Late Responses; VDOE’s Ignominious Failures (a.k.a. Obliterating 60-Day Timelines)

February 8, 2022, March 16, 2022, and September 1, 2022, USDOE OSEP issued subsequent letters to VDOE addressing VDOE's continued noncompliance. Neither USDOE OSEP nor VDOE made these letters available to the public. All three letters were obtained via Freedom of Information Act (FOIA) requests. A FOIA request for all such letters was submitted by Special Education Action. To date, the request has not been fulfilled.

October 24, 2022, NAEP data was released, indicating Virginia has been in decline since at least 2017. November 30, 2022, OCR released its letter of findings in response to its investigation of FCPS, which is one of the largest school districts in the United States.

September 21, 2022, a class action lawsuit was filed against VDOE and FCPS. The lawsuit was refiled January 20, 2023.

December 16, 2022, OCR released its letter of findings in response to its investigation of Southeastern Cooperative Educational Programs (SECDEP), which, like FCPS, is under the Virginia Department of Education (VDOE). As with FCPS, OCR found SECDEP at fault for massive noncompliance, including longstanding denial of FAPE. This case involves restraint and seclusion, another area of noncompliance VDOE has long-known to exist in Virginia. In FCPS, as one example, it took a class action lawsuit to address problems in the county. The 2022–23 school year is allegedly the first in year seclusion has been banned county-wide, in all schools. In SECDEP, the archaic practice paints a portrait of a system hurting, instead of helping students. Two horrendous examples identified by OCR include the following:

"Student H was restrained 157 times and was secluded 155 times during the 2016-2017 school year, for a total of over 4,500 minutes. Forty-nine of those restraints and 40 seclusions occurred in a one-month period early in the 2016-2017 school year. During the 2017-2018 school year, Student H had 92 restraints and 46 seclusions. According to the data OCR reviewed, Student H was not reevaluated during the 2016-2017 or 2017-2018 school years. SECEP provided a June 2016 IEP and a May 2018 IEP; however, there are no additional files suggesting reevaluation in the intervening period. None of the incident reports indicates whether staff used the reinforcement strategies outlined in the student’s BIP prior to the use of restraint and seclusion, and many of the reports did not document the total time Student H was restrained.

"Student I was restrained 71 times and was secluded 21 times during the 2016-2017 school year, for a total of over 760 minutes. Twenty of those restraints occurred in a one-month period early in the 2016-2017 school year. Seclusions lasted between five minutes and 240 minutes, and seven of the seclusions occurred in the first month of the 2016-2017 school year. There is no documentation of Student I’s IEP team convening to consider the student’s behaviors until four months later. A triennial reevaluation of Student I occurred mid-way through the 2017-2018 school year. The start times, end times, and duration of all seclusion incidents were not recorded consistently in Student I’s incident reports. There were no SQA logs included in Student I’s file, and the incident reports for seclusion incidents did not contain a record of Student I’s behavior at fifteen-minute intervals."

In a January 17, 2023, letter from OSEP VDOE, USDOE OSEP warned VDOE:

"If VDOE is unable to demonstrate full compliance with the IDEA requirements identified in OSEP’s monitoring report, this could result in the imposition of Specific Conditions on VDOE’s IDEA Part B grant award and could affect VDOE’s determination under section 616(d) of IDEA."

The letter admonished VDOE for its "outstanding noncompliance" first identified in OSEP’s June 23, 2020, monitoring report, and goes onto list the many continued areas of noncompliance.

In a February 17, 2023, letter from OSEP to VDOE, OSEP advised that it identified new areas of concern in addition to the areas yet to be addressed by VDOE:

"Finally, through review of the submitted documentation, continued contacts from Virginia parents and advocates, and other sources of information that have come to the attention of our office, we have significant new or continued areas of concerns with the State’s implementation of general supervision, dispute resolution, and confidentiality requirements of Part B of the Individuals with Disabilities Education Act (IDEA). . . . For this reason, as is discussed below, we are notifying you of OSEP’s plan to initiate additional monitoring activities focused on both the new and continued areas of concern and on the effective implementation IDEA requirements in these areas."

Areas of additional monitoring identified by USDOE OSEP in the February 17, 2023, letter include:

1. General Supervision procedures for the identification and correction of noncompliance

"At a minimum, OSEP intends to utilize the DMS 2.0 monitoring protocols for a systematic review of VDOE’s policies, procedures and practices for the identification and correction of noncompliance."

2. Provision of FAPE during the COVID-19 Pandemic and Compensatory Services

"Many States have responded both positively and proactively to ensure that students with disabilities get back on track. OSEP is concerned that Virginia’s leadership and guidance in this area has been deficient and may have led to noncompliance by school districts."

This includes addressing Office for Civil Rights findings on Fairfax County Public Schools.

"Although, OCR’s investigation was specific to Fairfax, the letter makes clear that Fairfax County Public Schools based their policies and practice at least partially upon guidance issued by VDOE.1Similarly, although OCR cited violations with Section 504, the policies and practices identified in this letter also appear to be inconsistent with IDEA. In addition, we are aware of State complaint decisions that were consistent with the policy and practices cited by OCR. Since the VDOE guidance was Statewide and because OSEP has received complaints from across the State about practices similar to those cited by OCR in Fairfax, OSEP will examine this matter." [emphasis added]

3. State complaint policies, procedures, and practices

"Through the review of State-submitted and publicly available documentation and information, and that provided by parents, OSEP has identified concerns with VDOE’s State complaint systems that go beyond the concerns originally identified in our DMS letter. These include, VDOE’s policies and practices for determining sufficiency of complaints consistent with 34 C.F.R. § 300.153(b), the conducting of investigation and issuing of a report that addresses each allegation in the complaint in accordance with 34 C.F.R. § 300.152(a)(5), meeting the timelines, including extensions, as specified under 34 C.F.R. § 300.152 (a and b), and procedures for the effective implementation of the SEA’s final decision."

4. Due process complaint and hearing procedures and implementation

"Through the review of State-submitted and publicly available documentation and information, and that provided by parents, OSEP has identified concerns with VDOE’s due process complaint and hearing process that go beyond the concerns originally identified in our DMS letter."

5. IEE policies, procedures, and practices

"Through the review of State-submitted and publicly available documentation and information, and that provided by parents, in addition to the continuation of improper practices previously cited, OSEP also has identified at least five LEAs that have procedures or practices for IEEs that appear inconsistent with IDEA’s regulations generally requiring the public agency to either fund the IEE (with an exception) or file a due process complaint to prove its evaluation was proper."

In addition to examining VDOE's response to OCR's findings, Williams stated OSEP would review the following IDEA requirements:

(1) general supervision procedures for the identification and correction of noncompliance (34 C.F.R. §§ 300.149 and 300.600);

(2) State complaint policies, procedures, and practices (34 C.F.R. §§ 300.151 through 300.153);

(3) due process complaint and hearing procedures (34 C.F.R. §§ 300.507 through 300.516);

(4) independent educational evaluation policies, procedures, and practices (34 C.F.R. § 300.502); and

(5) confidentiality of information procedures, particularly parent consent before the disclosure of personally identifiable information (34 C.F.R. §§ 300.611 through 300.626).

March 13, 2024, OSEP issued a letter of findings. The issues identified relate to state complaints, mediation, due process, prior written notice, confidentiality, and independent educational evaluations (IEE).

March 15, 2024, Superintendent Lisa Coons responded to OSEP's letter and report by issuing a letter to USDOE that states VDOE's commitment to change and includes a chart outlining VDOE's proposed corrective action plan (CAP) and timelines.

Notable corrective actions include changes to Virginia Administrative Code regarding state complaint and due process filings. Moving forward, parents and advocates will be able to file state complaints and due process against VDOE.

Notable long-term noncompliance continues to relate to independent educational evaluations (IEE) and VDOE's refusal to address noncompliance via its state complaint process.

Additional findings included in OSEP's March 13, 2024 report include the following:

State Complaints:

"OSEP finds that the State’s regulations and State complaint procedures contain provisions that are inconsistent with the following IDEA requirements: a. 34 C.F.R. §§ 300.33 and 300.153(b); b. 34 C.F.R. § 300.153(b); c. 34 C.F.R. § 300.152(a)(5) and OSEP’s IDEA Part B Dispute Resolution Procedures guidance; and d. 34 C.F.R. §§ 300.11(a) and (b) and 300.152(a)."

"OSEP finds that the State’s model form for State complaints is inconsistent with 34 C.F.R. § 300.509(a) in that it requires information beyond what is required by the IDEA regulation at 34 C.F.R. § 300.153(b) without designating the additional information requested as optional."

2. Mediation

"OSEP finds that the State’s procedure requiring parties to sign a confidentiality pledge prior to the commencement of mediation, as permitted in 8VAC20-81-190.E.3, is inconsistent with 34 C.F.R. § 300.506(b)(8) and OSEP guidance."

3. Due Process

"OSEP finds that the State’s regulation at 8VAC20-81-210.A and due process complaint procedures apply only to “LEAs” or “school divisions” rather than all of the entities listed under IDEA’s “public agency” definition as required by 34 C.F.R. §§ 300.33 and 300.507."

"OSEP finds that the State’s regulation at 8VAC20-81-210.P.9.b. permits the SEA to provide approval for an extension of the due process hearing timeline when neither party requests an extension of time which is inconsistent with the requirements in 34 C.F.R. § 300.515(a) and (c)."

4. Prior Written Notice

"OSEP finds that the State’s guidance indicating that prior written notice is not required after an individualized education program (IEP) team meeting if the child’s IEP has not been finalized is inconsistent with the requirements in 34 C.F.R. § 300.503(a)."

5. Confidentiality

"OSEP finds that the State’s Frequently Asked Questions (FAQ) guidance is inconsistent with the State’s regulatory definition of education record. Further, the State’s FAQ guidance is inconsistent with IDEA’s definition of education record in 34 C.F.R. § 300.611(b) and in Family Education Rights and Privacy Act of 1974 (FERPA) definition at 34 C.F.R § 99.3."

"OSEP finds that the State has not provided the required content in its notice to parents in a manner that is adequate to fully inform parents under 34 C.F.R. § 300.612."

6. Independent Educational Evaluation (IEE)

"OSEP finds that the State has not ensured that its LEAs are implementing the IEE requirements in the State’s revised regulation at 8VAC20-81.170.B.2.a and c, and IDEA’s requirements in 34 C.F.R. § 300.502."

March 27–28, 2024, Virginia Board of Education (VBOE) held its monthly meetings. A brief discussion about the March 13,, 2024, findings occurred (at about the 3:50:00 mark) and Lisa Coons gave Samantha Hollins a "shout out" for all the work she did with OSEP, even though Hollins has spent years insisting noncompliance doesn't exist and refusing to address it. Indeed, after the 2020 DMS report was released, her response was to issue a ten-page response attempting to poke holes in OSEP's findings and state it had been provided incorrect information.

During the VBOE discussion, Coons addressed OSEP's required changes to Virginia Administrative Code (VAC). The document "Regulatory Changes to Align with DMS Report" appears on VDOE's site, as a part of the agenda for the meeting.

The document addresses changes required by OSEP, to ensure specific VAC regulations are consistent with IDEA.

Hollins and others at VDOE had long been aware of the inconsistencies during the years prior to OSEP's investigation, but refused to change them. For example, in VDOE's response to a state complaint filed against VDOE—which it issued prior to OSEP issuing its new DMS findings—VDOE 1) admitted to almost 20 years of knowing VAC to be inconsistent with IDEA and 2) that instead of changing VAC, VDOE chose to let inconsistent language stand for almost 20 years and create its own internal practices and follow them instead of VAC:

"In August 2006, the United States Department of Education issued its new federal regulations, developed in response to the reenactment of the Individuals with Disabilities Education Act of 2004. Subsequent, to that time, Virginia initiated a process to amend its state regulations to conform to the federal changes. Shortly after the new Virginia Regulations were enacted, there was a review and notification regarding the inconsistency to VDOE special education which noted that the inconsistency was an error, and that both provisions should have read “seven business days.” The state complaint procedures clearly reflect that the time-period was seven business days for both activities."

By admitting this, VDOE provided another example of VDOE flip-flopping to protect itself.

Prior to OSEP's 2020 DMS report, VAC's language regarding IEEs was inconsistent with IDEA. However, VDOE and local school agencies insisted that VAC had to be followed and refused to 1) change VAC and 2) follow anything other than VAC.