Updated 4.7.24—Virginia in More Hot Water; U.S. Department of Education Issues New Report, Finds VDOE at Fault for More Noncompliance

March 18, 2024: Article published. April 7, 2024: Article updated. Updated information appears below in bold/red.

March 13, 2024, U.S Department of Education (USDOE) Office of Special Education Programs (OSEP) found Virginia Department of Education (VDOE) in noncompliance for the fourth year in a row. OSEP released its findings in a new Differentiated Monitoring Support report and letter. 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.

Due Process and State Complaints Can Be Filed Against State Education Agencies

Virginia's regulations restrict 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 report, OSEP emphasizes that the definition of "public agency" goes 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 marks a significant change for families whose repeated attempts to hold VDOE accountable for noncompliance have been blocked by VDOE's noncompliance.

Independent Education Evaluations = Decades of Noncompliance

In its 2020 DMS findings and report, OSEP determined Virginia's IEE regulations restricted rights to IEEs to "components" previously assessed by LEAs. For example, if a LEA's evaluation included an educational evaluation and a psychological evaluation, parents requesting an IEE that includes an education, psychological, and auditory processing evaluation would be denied the auditory processing evaluation. The denial was based on a one-to-one model of components.

Virginia Administrative Code had to be changed to eliminate the restrictions. In addition, VDOE was supposed to "require its LEAs to conduct a similar review of their policies, procedures, and practices," to ensure compliance. Four years later, the noncompliance continues throughout the state. (Additional reading: "16 Years of Noncompliance: Virginia Department of Education Fails Students and to Perform Its General Supervisory Duties")

Additional Findings & Change

While Coons' reply to OSEP marks a change in VDOE's response to being found in noncompliance (previously VDOE denied fault, alleged OSEP based decisions on incorrect information), it isn't a guarantee that change is on the horizon. With the exception of Coons, who was appointed Virginia Superintendent of Public Education almost a year ago, VDOE staff continues to include the individuals who failed to stop the noncompliance for decades. This includes VDOE's Office of Dispute Resolution, whose "compliance specialists" previously have refused to address noncompliance. The following is one example identified by USDOE:

"[I]n one complaint decision, VDOE identified a violation regarding the notice provided to the parent about who would be in attendance in advance of an IEP Team meeting. In that decision, VDOE stated that, because “the complainant did not raise this allegation in her complaint it would be inappropriate to address this further in this Letter of Findings.”

According to the report, 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.'"

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

  1. 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, 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."

"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."

VDOE's Next Steps

March 27–28, 2024, Virginia Board of Education (VBOE) held its monthly meetings. A brief discussion about the new DMS report 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 Independent Educational Evaluations (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.

Yet, now VDOE alleges it knows VAC to be inconsistent, which is why it set up its own internal practices and followed them instead of VAC.

If VDOE could do this with current inconsistent language, why couldn't it do the same years ago, with inconsistent IEE language? 

In addition, why did it let the inconsistent language stand for almost 20 years and why does it refuse to address the rest of the inconsistent language that OSEP has yet to address itself? Why not change it?

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."

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).

Read the full DMS report for more information about OSEP's findings and corrective action requirements.

Additional reading:

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.

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