UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2800

www.ed.gov

The Department of Education’s mission is to promote student achievement and preparation for global competitiveness

by fostering educational excellence and ensuring equal access. 

September 1, 2022

Honorable Jillian Balow 

Superintendent of Public Instruction 

Virginia Department of Education 

P.O. Box 2120 

Richmond, Virginia 23218 

Jillian.Balow@doe.virginia.gov 

Dear Superintendent Balow: 

This letter addresses the Virginia Department of Education’s (VDOE or State) corrective action 

submissions to the U.S. Department of Education, Office of Special Education Programs (OSEP) 

on September 18, 2020, October 29, 2020, March 4, 2021, December 21, 2021, January 25, 

2022, and June 10, 2022. Some of the information in this response is also based on telephone 

meetings with the State on January 15, 2022, and April 20, 2022. These submissions and 

conversations are in response to OSEP’s required actions under the following sections in OSEP’s 

May 23, 2020, differentiated monitoring and support (DMS) report: a) Compliance; b) Dispute 

Resolution Procedures; and c) Independent Educational Evaluations (IEE). 

OSEP’s DMS report required VDOE to take the following corrective actions within 90 days 

from the date of the DMS report: 

COMPLIANCE

A. General Supervision 

VDOE must provide a written plan to OSEP that describes how it will ensure that all of its 

LEAs meet the requirements of Part B of IDEA. The State’s plan must include a description of 

the steps VDOE will take to ensure that: 

1. The State establishes and will implement general supervision and monitoring procedures 

and practices that are reasonably designed to ensure that LEAs meet IDEA’s program 

requirements. The State’s procedures and practices must ensure that the State’s systems 

for review of LEA compliance data and other information are sufficiently comprehensive 

to identify noncompliance in a timely manner and ensure timely correction of any 

identified noncompliance consistent with the requirements in 20 U.S.C. § 1232d(b)(3)(A) 

and (E) and 34 C.F.R. § 300.600(e) and OSEP Memorandum 09-02 (OSEP Memo 

09-02), dated, October 15, 2008. 

2. Specifically, the State must revise its general supervision and monitoring system to 

include procedures and practices that are reasonably designed, as appropriate, to consider 

and address credible allegations of local educational agency (LEA) noncompliance in a 

timely manner. 
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3. The State must provide a copy of the notification to be issued to all LEAs, parent 

advocacy groups and other interested parties advising them that the State has revised its 

policies, procedures, and practices for general supervision and monitoring to be 

consistent with the required actions described above. 

DISPUTE RESOLUTION PROCEDURES

B. State Complaint Procedures 

1. State must submit to OSEP documentation demonstrating the State has established and 

will implement 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. 

C. Due Process Complaint and Hearing Procedures 

1. Submit documentation demonstrating that the State has revised its dispute resolution 

procedures and practices and is implementing those revisions, to ensure that: 

a. The State has a mechanism for tracking the timelines for the resolution process 

required under 34 C.F.R. § 300.510 to determine when: resolution meetings 

occur; the 30-day resolution period or the adjusted resolution period has 

concluded; and the 45-day hearing timeline commences. 

b. The State has a mechanism for tracking the timelines for resolution meetings and 

the resolution period for expedited due process complaints in 34 C.F.R. 

§ 300.532(c)(3) and for determining whether expedited due process hearings and 

determinations in those hearings occur within the timelines required in 34 C.F.R. 

§ 300.532(c)(2); and 

c. Hearing officers are receiving appropriate training allowing them to apply and 

track the resolution period timelines for all due process hearings. 

2. Submit 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 for the School Year 2020–2021 data 

collection. The reporting year for this data collection is July 1, 2020, through June 30, 

2021. 

3. Submit a copy of the notification to be issued to all hearing officers, LEAs, parent 

advocacy groups, and other interested parties advising them that the State has revised and 

is implementing procedures for tracking the timeliness of the resolution process and fully 
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adjudicated due process hearing decisions to be consistent with the required actions 

described above. 

D. Mediation

1. Documentation demonstrating that the State has established revised procedures and 

practices, and is implementing those revisions, to ensure that the State’s mediation 

coordinator, an employee of the SEA, does not co-mediate and is not present during 

mediation sessions. 

2. A copy of the notification to be issued to all LEAs, parent advocacy groups, and other 

interested parties advising them that the State has implemented revised procedures and 

practices that prohibit the attendance of any employee of VDOE at a mediation sessions.

E. Independent Educational Evaluations 

1. Submit a written assurance to OSEP specifying that as soon as possible but in no case 

later than one year from the date of OSEP’s June 23, 2020’ DMS report, in accordance 

with 20 U.S.C. § 1415(b)(1) and 34 C.F.R. § 300.502, the State will revise Virginia 

Administrative Code 8VAC20-81-170(B)(2)(a) and (e) to, at a minimum, remove the 

word “component” following the word “evaluation.” 

2. Submit to OSEP a copy of a memorandum that the State has issued to all LEAs, parent 

advocacy groups, and other interested parties instructing LEAs to comply with 20 U.S.C. 

1415(b)(1) and 34 C.F.R. § 300.502(b) by also providing an IEE at public expense in 

areas where the LEA previously has not conducted its own evaluation, unless the LEA 

has demonstrated, through a due process hearing decision, that its evaluation is 

appropriate; and advising that the State will be revising Virginia Administrative Code 

8VAC20-81-170(B)(2)(a) and (e), to, at a minimum, remove the word “component” 

following the word “evaluation” in accordance with 20 U.S.C. § 1415(b)(1) and 34 

C.F.R. § 300.502(b). 

3. Upon completion of the changes to the Administrative Code, submit to OSEP 

documentation of the revisions. 

4. Review and revise its policies, procedures, and practices regarding the IEE process, and 

require its LEAs to conduct a similar review of their policies, procedures, and practices, 

to ensure that pending revision of Virginia Administrative Code 8VAC20-81-

170(B)(2)(a) and (e): 

a. VDOE and its 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; and 

b. In a circumstance where a parent requests an IEE at public expense of their child 

in an area not previously assessed by the public agency, the public agency, 

without unnecessary delay, either: 
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i. Initiates a hearing under 34 C.F.R. § 300.507 to show that its evaluation is 

appropriate; or 

ii. The public agency must ensure that an IEE is provided at public expense, 

unless the agency demonstrates in a hearing under 34 C.F.R. § 300.507 

that the evaluation obtained by the parent did not meet agency criteria. 

Upon reviewing the State’s submissions, OSEP has determined that VDOE has met the above 

required actions for the areas related to Mediation. No further action is required with respect to 

the finding. 

With respect to General Supervision, OSEP has determined VDOE has submitted evidence of its 

revised general supervision and monitoring system in accordance with corrective actions and is 

closing this finding. OSEP will continue to monitor the State’s implementation of its general 

supervision and monitoring system through State-reported data and reserves the right to revisit 

the matter based on future, additional information OSEP may receive.

OSEP concludes that the State has not provided information to demonstrate it has corrected the 

identified noncompliance related to State Complaint Procedures, Due Process Complaint and 

Hearing Procedures, and Independent Educational Evaluations and those findings remain open, 

as detailed below: 

A. Due Process Complaint and Hearing Procedures

1. In its March 11, 2022 response, and submission to OSEP regarding the corrective 

action(s) under Due Process Complaint and Hearing Procedures, VDOE provided the 

following documents: 

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. 

2. 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. 

3. 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. 
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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 
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guidance listed on the State’s website, including guidance located here: VDOE: Special 

Education State Regulations, Laws & Policies (virginia.gov). 

Summary

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. 

OSEP appreciates the cooperation and assistance provided by your State staff in addressing the 

above requirements to improve compliance with IDEA Part B requirements and results for 

children with disabilities. If you have any questions, please do not hesitate to call your OSEP 

State Lead, Koko Austin, at Ayorkor.Austin@ed.gov or 202-245-6720. 

Sincerely, 

Valerie Williams

Director

Office of Special Education Program 
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cc: Samantha Hollins, State Director of Special Education