June 23, 2020, the U.S. Department of Education Office of Special Education Programs (OSEP) issued a Differentiated Monitoring and Support report on Virginia.

“Mediation” is among the topics OSEP investigated. Per OSEP:

Under 20 U.S.C. § 1415(e)(1) and 34 C.F.R. § 300.506(a), each SEA must ensure that procedures are established and implemented to allow parties to disputes involving any matter under this part, including matters arising prior to the filing of a due process complaint, to resolve disputes
through a mediation process. Under 20 U.S.C. § 1415(e)(2)(A) and 34 C.F.R. § 300.506(b)(1), the State’s procedures must ensure that the mediation process—

1. Is voluntary on the part of the parties;

2. Is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any other rights afforded under Part B of the IDEA; and

3. Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. Under 34 C.F.R. § 300.506(c)(1)(i)–(ii), an individual who serves as a mediator may not be an employee of the SEA or the LEA that is involved in the education or care of the child and may not have a personal or professional interest that conflicts with the person’s objectivity.

Based on its investigation, OSEP concluded that Virginia:

State does not have procedures and practices that are reasonably designed to implement a mediation process that is consistent with the requirements of 20 U.S.C. § 1415(e) and 34 C.F.R. § 300.506.

In her response to OSEP’s report, Samantha Hollins, VDOE’s Assistant Superintendent of Special Education and Student Services, stated:

In its draft report, OSEP wrongly states as factual background the “active participation of the State’s mediation coordinator in the mediation sessions themselves, in addition to the mediator of record.” The Coordinator of Mediation Services, a VDOE employee, does not comediate either with new or experienced mediators. Neither does the Coordinator attend all mediations. . . . The Coordinator does not involve himself in substantive issues.

And yet . . .

In 2016, Art Stewart, head of Mediation Services for the Virginia Department of Education, performed the role of the mediator at a mediation I attended, even though Sec 300.506(c)(1) states:

An individual who serves as a mediator under this part—(i) May not be an employee of the SEA or the LEA that is involved in the education or care of the child.

I didn’t know better. It was my first mediation. I thought he did all the mediations—and no one advised me otherwise. He called to set it up, scheduled the time and location, etc. I never asked for him, but when it came time to sign the Agreement to Mediate, I signed off on the language, “By their signatures below, the following people indicate their request that Art Stewart mediate . . . ” He was the only mediator there (although there was a mediator-in-training in attendance), so there was no one else to ask. . . .

Add to it that almost four years later, Fairfax County Public Schools has yet to fully implement that very mediated agreement.

Perhaps Sam could revise her report to OSEP and speak with FCPS about implementing the mediated agreement in full? No parent should have to take a school division to court in order to have a legal document implemented in full.

(And, perhaps VDOE could address the misleading information Sam provided during our last phone call.)