U.S. Dept. of Education Puts Virginia on Notice: Get into Compliance or Face Sanctions

***BREAKING NEWS***

Just weeks before Jillian Balow announced her resignation as Virginia Superintendent of Public Education, United States Department of Education (USDOE) Office of Special Education Programs (OSEP) put Virginia Department of Education (VDOE) on Notice: Get into compliance or face sanctions.

In a January 17, 2023, letter from USDOE OSEP to Balow (obtained today via a FOIA request), 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 admonishes 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 USDOE OSEP to Balow (obtained today via a FOIA request), USDOE 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.

Less than two weeks later, on March 1, 2023, Balow submitted her resignation.

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

• 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.”
• 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]
• 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.”
• 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.”
• 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.”

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 harming student. 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.

Three months into 2023, statewide noncompliance continues. It’s not a secret to VDOE or parents. In FCPS, the school district has chosen to engage in the very noncompliance for which OCR found it at fault.

Additional reading:

• FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part I
  • Focuses on FCPS denying services to students who didn’t participate in online learning.
• Fairfax County Public Schools Ignores Office for Civil Rights; Noncompliance Continues, Part II
  • Focuses on FCPS reducing, limiting & watering down services and instruction
• FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part III
  • Focuses on FCPS’s refusal to convene teams of knowledgeable committee members, its refusal to use and document data in compliance with IDEA and Section 504, and its refusal to ensure individuals with credentials to interpret data are in attendance at IEP or 504 Plan meetings.
• FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part IV
  • Focuses on FCPS’s refusal to provide access to educational records, specifically “information recorded by the Division regarding the amount of special education, related aids or services provided during the Pandemic Period, including the option to review IEP or Section 504 service logs.”
• FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part V
  • Focuses on FCPS’s practice of equating provision of a computer with provision of a Free Appropriate Public Education (FAPE)—and then denying compensatory education.
• FCPS Ignores Office for Civil Rights; Noncompliance Continues, Part VI
  • Focuses on FCPS’s failure to provide the related service of transportation.

What is IDEA Part B?

The Individuals with Disabilities Education Act (IDEA) authorizes formula grants to states and discretionary grants to state educational agencies, institutions of higher education, and other nonprofit organizations. It is broken down into four parts:

• Part A outlines IDEA’s general provisions, including the purpose of IDEA and the definitions used throughout the statute.
• Part B includes provisions related to formula grants that assist states in providing a free appropriate public education (FAPE) in the least restrictive environment for children with disabilities ages three through 21.
• Part C includes provisions related to formula grants that assist states in providing early intervention services for infants and toddlers birth through age two and their families.
• Part D includes provisions related to discretionary grants to support state personnel development, technical assistance and dissemination, technology, and parent-training and information centers.

What is 2 C.F.R. § 200.208?

§ 200.208 states the following:

(a) Federal awarding agencies are responsible for ensuring that specific Federal award conditions are consistent with the program design reflected in § 200.202 and include clear performance expectations of recipients as required in § 200.301.

(b) The Federal awarding agency or pass-through entity may adjust specific Federal award conditions as needed, in accordance with this section, based on an analysis of the following factors:

(1) Based on the criteria set forth in § 200.206;

(2) The applicant or recipient’s history of compliance with the general or specific terms and conditions of a Federal award;

(3) The applicant or recipient’s ability to meet expected performance goals as described in § 200.211; or

(4) A responsibility determination of an applicant or recipient.

(c) Additional Federal award conditions may include items such as the following:

(1) Requiring payments as reimbursements rather than advance payments;

(2) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given performance period;

(3) Requiring additional, more detailed financial reports;

(4) Requiring additional project monitoring;

(5) Requiring the non-Federal entity to obtain technical or management assistance; or

(6) Establishing additional prior approvals.

(d) If the Federal awarding agency or pass-through entity is imposing additional requirements, they must notify the applicant or non-Federal entity as to:

(1) The nature of the additional requirements;

(2) The reason why the additional requirements are being imposed;

(3) The nature of the action needed to remove the additional requirement, if applicable;

(4) The time allowed for completing the actions if applicable; and

(5) The method for requesting reconsideration of the additional requirements imposed.

(e) Any additional requirements must be promptly removed once the conditions that prompted them have been satisfied.