Virginia Dept. of Education’s Noncompliance Continues; Blows Through U.S. Dept. of Education’s 90-Day Compliance Deadlines

November 11, 2022: Article first published.

November 19, 2022: Article updated to include items 1a, b, c, and d, which are cited on page four of USDOE’s September 1, 2022, letter to VDOE.

Virginia Department of Education (VDOE) remains in noncompliance of federal regulations.

June 23, 2020, United States Department of Education (USDOE) Office of Special Education Programs (OSEP) determined Virginia Department of Education (VDOE) is in noncompliance with federal regulations and issued a DMS Report about Virginia.

VDOE was supposed to address the noncompliance within 90 days, yet more than two years have passed and the noncompliance has continued.

September 1, 2022, United States Department of Education issued another a letter to VDOE that addresses VDOE’s continued failures. This letter was not provided to the public, nor were the similarly critical letters USDOE sent on February 8, 2022, and March 16, 2022. All three letters were obtained via Freedom of Information Act (FOIA) requests. Special Education Action received the September 1, 2022, letter yesterday, November 10, 2022, by Powhatan, Virginia, parent Kathy Halvorsen. November 11, 2022, Kathy emailed Samantha Hollins, VDOE’s assistant superintendent of its department of special education, and requested items 1a, b, c, and d, cited on page four of the letter. November 18, 2022, Kathy kindly forwarded the response she received from Hollins. (See documents added below.)

A few stand-out criticisms:

A. Due Process Complaint and Hearing Procedures

. . . during a phone wall with OSEP on April 20, 2022, the State noted that it had plans for the development of a real-time tracking system. However, the current tracking log is completed using information obtained from hearing officers upon case completion, rather than in real time.

OSEP noted during the April 20, 2022 call, OSEP received complaints alleging that Hearing Officers have not adhered to hearing timelines required in 34 C.F.R. §§ 300.515(a) for a due process hearing, specifically granting extensions for issuing decisions from September 2020 to December 2021.

OSEP also noted discrepancies between case information reported in the tracking log and information contained in Pre-Hearing Reports provided by Virginia parents issued in their respective cases. In the phone call on April 20, 2022, State staff indicated they do not review Pre-Hearing Reports and other documents provided during Due Process Hearings; however, the State does maintain the documents in its files.

Based on the above, OSEP is unable to determine if the State has revised its due process hearing data collection processes to ensure that, consistent with the information set forth above, it is able to provide accurate data on fully adjudicated hearings and hearing decisions with allowable extensions for the IDEA Section 618 dispute resolution data submission for due process hearings conducted pursuant to 34 C.F.R. §§ 300.511–300.515 and for expedited due process hearings conducted pursuant to 34 C.F.R. § 300.532.

B. State Complaint Procedures

1. In its March 11, 2022 response submission to OSEP regarding the corrective actions under State Complaint procedures, the State provided a September 21, 2020, Staff Protocol for Communications with Individuals Subject to a Communication Plan.
a) This protocol outlines a process to review incoming communication on a weekly basis to identify complaints and ensure they are handled via the state complaint protocol provided by the state.
b) OSEP is copied on several communications identified as complaints by the authors of the emails. It is unclear if the authors are subject to a communication plan with the State, however, it does not appear that all the complaints are handled according to the state complaint protocol.

2. In response to OSEP’s February 8, 2022 follow up letter requiring the State to “provide OSEP with documentation showing, at a minimum, examples of how incoming communications were handled and the results of these actions”, the State provided a log of “incoming communications and how they were handled.”
a) That log outlines approximately 1,843 communications with 29 outcomes.

Based on the documentation submitted, OSEP remains concerned that the State is not addressing the complaints it receives in a timely manner. Therefore, it is not clear if the State is implementing procedures and practices to ensure that the State resolves every complaint that meets the requirements in 34 C.F.R. § 300.153 in accordance with the minimum State complaint procedures in 34 C.F.R. § 300.152, even in circumstances where the State develops a communication plan with an individual complainant.

C. Independent Educational Evaluations

1. OSEP’s February 8, 2022 follow up letter to the required actions under Independent Educational Evaluations, in which OSEP requested the State to require LEAs to conduct a review of their policies, procedures, and practices, to ensure that LEAs do not limit a parent’s right to obtain an IEE at public expense to the areas of assessment or evaluation components that were previously conducted by the public agency.
a) OSEP has been copied on correspondence from parents addressed to LEAs or the
State regarding concerns with compliance with IEE requirements including the
continued use of “denial” letters contrary to IDEA.

OSEP is concerned that the State has not fully disseminated updated guidance on IEEs nor required LEAs to ensure they do not limit a parent’s right to IEEs. OSEP found outdated guidance listed on the State’s website, including guidance located here: VDOE: Special Education State Regulations, Laws & Policies (virginia.gov).

USDOE’s summary includes the following:

VDOE has not satisfactorily corrected each of the areas of noncompliance identified in OSEP’s May 23, 2020, DMS Report. OSEP has scheduled a meeting for September 8, 2022, with the State Director of Special Education to discuss the status of the outstanding corrective actions and anticipated timeframe for completion. OSEP reminds VDOE that all noncompliance should be corrected as soon as possible and in no case more than one year after identification.
OSEP requests that VDOE submit the information and documentation below, which the State had previously agreed to provide. The documents can be uploaded via the secured SharePoint link provided on July 29, 2022:

1. Case Closure Summaries/Reports requested on February 8, 2022, and May 11, 2022, especially relating to all hearings held between September 1, 2020, and December 31, 2021.
2. Documentation demonstrating that the State has reviewed its due process hearing data collection processes and revised them, as necessary, to ensure that, consistent with the information set forth above, it will be able to provide accurate data on fully adjudicated hearings and hearing decisions with allowable extensions for the IDEA Section 618 dispute resolution data submission for due process hearings conducted pursuant to 34 C.F.R. §§ 300.511–300.515 and for expedited due process hearings conducted pursuant to 34 C.F.R. § 300.532.
3. Documentation demonstrating the State is implementing procedures and practices to ensure that the State resolves every complaint that meets the requirements in 34 C.F.R. § 300.153 in accordance with the minimum State complaint procedures in 34 C.F.R. § 300.152, even in a circumstance where the State develops a communication plan with an individual complainant
4. Documentation demonstrating State has required LEAs to conduct a review of their policies, procedures, and practices, to ensure that LEAs do not limit a parent’s right to obtain an IEE at public expense to the areas of assessment or evaluation components that were previously conducted by the public agency.

November 18, 2022, FOIA Response

November 18, 2022, Samantha Hollins provided parent Kathy Halvorsen the following items that are cited in its September 1, 2022, letter to VDOE:

a) Tracking Log
b) Memorandum to Hearing Officers dated September 30, 3020
c) Memorandum to Hearing Officer Francis dated October 8, 2021, and
d) Letter to Supreme Court of Virginia dated January 6, 2022.

USDOE’s letter identifies the following problems with these items:

Additionally, during a phone wall with OSEP on April 20, 2022, the State noted that it had plans for the development of a real-time tracking system. However, the current tracking log is completed using information obtained from hearing officers upon case completion, rather than in real time.

OSEP noted during the April 20, 2022 call, OSEP received complaints alleging that Hearing Officers have not adhered to hearing timelines required in 34 C.F.R. §§ 300.515(a) for a due process hearing, specifically granting extensions for issuing decisions from September 2020 to December 2021. OSEP also noted discrepancies between case information reported in the tracking log and information contained in Pre-Hearing Reports provided by Virginia parents issued in their respective cases. In the phone call on April 20, 2022, State staff indicated they do not review Pre-Hearing Reports and other documents provided during Due Process Hearings; however, the State does maintain the documents in its files.

Based on the above, OSEP is unable to determine if the State has revised its due process hearing data collection processes to ensure that, consistent with the information set forth above, it is able to provide accurate data on fully adjudicated hearings and hearing decisions with allowable extensions for the IDEA Section 618 dispute resolution data submission for due process hearings conducted pursuant to 34 C.F.R. §§ 300.511–300.515 and for expedited due process hearings conducted pursuant to 34 C.F.R. § 300.532.