UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OFFICE OF SPECIAL EDUCATION PROGRAMS

DIRECTOR

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.

February 17, 2023

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, and the accompanying chart, summarizes the current status of the outstanding 

findings from the Office of Special Education Program’s (OSEP’s) Differentiated Monitoring 

and Support (DMS) report issued on June 23, 2020. As detailed below, some findings are closed 

with no further action required. Some findings, remain open due to continued concerns around 

the documentation provided to date and information related to the required actions. 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). Appropriate policies and procedures for both oversight and 

compliance, and their implementation, are crucial to ensuring that children with disabilities and 

their families are afforded their rights under IDEA and that a free appropriate public education 

(FAPE) is provided. 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.

June 23, 2020 DMS findings: The chart below summarizes the current status of the findings 

from OSEP’s June 23, 2020 letter. Further details of OSEP’s analysis and next steps are found in 

the attached chart.

Finding Status

CLOSED FINDINGS

GENERAL SUPERVISION: Based on the review of 

documents, analysis of data, and interviews with State 

personnel, OSEP concludes that the State does not have 

procedures and practices that are reasonably designed to 

enable the State to exercise general supervision over all 

Original finding is closed

based on the submission 

documentation consistent 

with required actions.
Page 2 – Honorable Jillian Balow

Finding Status

educational programs for children with disabilities 

administered within the State, to ensure that all such 

programs meet the requirements of Part B of IDEA, and to 

effectively monitor the implementation of Part B of IDEA, as 

required by 20 U.S.C. §§ 1412(a)(11) and 1416(a), 34 C.F.R. 

§§ 300.149(a) and (b) and 300.600(a) and (b), 20 U.S.C. § 

1232d(b)(3)(A) and (e), 34 C.F.R. § 300.600(e) and 2 C.F.R. 

§ 200.332.

However, the consistent 

implementation of these 

practices and procedures 

remains an area of concern. 

Further, as noted in our

September 1, 2022 letter, 

OSEP intends to continue to 

monitor the State’s 

implementation of its general 

supervision and monitoring 

system through State-reported 

data and has reserved the 

right to revisit the matter 

based on future, additional 

information OSEP may 

receive.

OSEP intends to further 

investigate implementation of 

VDOE’s general supervision 

system in our additional 

monitoring activities and may 

require additional corrective 

actions based on new 

analyses and findings, if any.

DUE PROCESS COMPLAINT AND HEARING

PROCEDURES: Based on the review of documents, 

analysis of data, and interviews with State personnel, OSEP 

concludes that:

1. The State is not exercising its general supervisory and 

monitoring responsibilities in accordance with 20 

U.S.C. §§ 1412(a)(11)(A) and 1416(a) and 20 U.S.C. 

§ 1232d(b)(3)(A) and 34 C.F.R. §§ 300.149(a) and (b) 

and 300.600(a) and (d)(2) with regard to the 

following: 

a. VDOE does not ensure and document that 

LEAs track the implementation of the 

timelines for the resolution process for due 

process complaints filed by parents in 34 

C.F.R. § 300.510 and for calculating the 

beginning and expiration of the 45-day due 

process hearing decision timeline in 34 C.F.R. 

Closed. 

Findings 1 (a) and (b): No 

further action is required.
Page 3 – Honorable Jillian Balow

Finding Status

§ 300.515(a), unless under 34 C.F.R. § 

300.515(c), a hearing officer grants a specific 

extension of the 45-day timeline at the request 

of a party to the hearing; and 

VDOE does not ensure that its LEAs track the 

implementation of the resolution timelines in 34 C.F.R. § 

300.532(e)(3) and that hearing officers track the 

implementation of the expedited due process hearing 

timelines in 34 C.F.R. § 300.532(e)(2) in order to properly 

track due process hearing decision timelines. 

MEDIATION: Based on the review of documents and 

interviews with State personnel, OSEP concludes that the 

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. Specifically, the State’s practice of 

having its mediation coordinator co-mediate when the 

mediator is new, and permitting its mediation coordinator to 

be present at the mediation sessions is inconsistent with the 

requirement in 34 C.F.R. § 300.506(e)(1) that the State’s 

procedures ensure that a mediator is not an employee of the 

SEA and has no personal or professional interest that would 

conflict with the mediator’s objectivity

Closed, no further action is 

required at this time. 

OPEN FINDINGS

GENERAL SUPERVISION: Additional Concern

Provision of FAPE and Compensatory Services during the 

pandemic.

Additional Concern

As a result of the Office for 

Civil Rights’ (OCR) 

November 30, 2022 letter to 

Fairfax County, OSEP is 

concerned about the potential 

for similar issues in other 

LEAs in Virginia. OSEP 

intends to further investigate 

this issue in our additional 

monitoring activities and may 

require additional corrective 
Page 4 – Honorable Jillian Balow

Finding Status

actions based on new 

analyses and findings, if any.

STATE COMPLAINT PROCEDURES: Based on the 

review of documents, analysis of data, and interviews with 

State personnel, OSEP concludes that the State is not 

exercising its general supervisory and monitoring 

responsibilities to implement its state complaint resolution 

system in a manner consistent with all the requirements in 20 

U.S.C. § 1412(a)(11)(A) and 1416(a) and 34 C.F.R. §§ 

300.149 and 300.600 and 34 C.F.R. §§ 300.151 through 

300.153 for the following reason:

The State does not ensure that it resolves every complaint that 

meets the requirements of 34 C.F.R. § 300.153 in accordance 

with the minimum State complaint procedures in 34 C.F.R. § 

300.152, specifically in the situation where the State has 

developed a communication plan with an individual parentcomplainant.

Open.

Further actions are required to 

close this finding. OSEP 

intends to further investigate 

compliance and 

implementation of State 

complaint procedures in our 

additional monitoring 

activities and may require 

additional corrective actions 

based on new analyses and 

findings, if any.

DUE PROCESS COMPLAINT AND HEARING

PROCEDURES: Based on the review of documents, 

analysis of data, and interviews with State personnel, OSEP 

concludes that:

2. The State is not exercising its general supervisory and 

monitoring responsibilities in accordance with 20 

U.S.C. §§ 1412(a)(11)(A) and 1416(a) and 20 U.S.C. 

§ 1232d(b)(3)(A) and 34 C.F.R. §§ 300.149(a) and (b) 

and 300.600(a) and (d)(2) with regard to the 

following: 

a. VDOE does not ensure and document that 

LEAs track the implementation of the 

timelines for the resolution process for due 

process complaints filed by parents in 34 

C.F.R. § 300.510 and for calculating the 

beginning and expiration of the 45-day due 

process hearing decision timeline in 34 C.F.R. 

§ 300.515(a), unless under 34 C.F.R. § 

300.515(c), a hearing officer grants a specific 

extension of the 45-day timeline at the request 

of a party to the hearing; and 

Open. 

Findings 2-4: Further actions 

are required. For details see 

attached chart.

OSEP intends to further 

investigate compliance and 

implementation of due 

process complaint and 

hearing procedures in our 

additional monitoring 

activities and may require 

additional corrective actions 

based on new analyses and 

findings, if any.
Page 5 – Honorable Jillian Balow

Finding Status

b. VDOE does not ensure that its LEAs track the 

implementation of the resolution timelines in 

34 C.F.R. § 300.532(e)(3) and that hearing 

officers track the implementation of the 

expedited due process hearing timelines in 34 

C.F.R. § 300.532(e)(2) in order to properly 

track due process hearing decision timelines. 

3. Consequently, OSEP concludes that the State does not 

have procedures and practices that are reasonably 

designed to ensure a timely resolution process for due 

process complaints filed by parents or the timely 

adjudication of due process complaints that result in 

due process hearings, or a timely resolution process 

for expedited due process complaints, and the timely 

adjudication of expedited due process hearings.

4. Because the State does not have a mechanism to 

reliably determine the date on which the 45-day due 

process hearing timeline in 34 C.F.R. § 300.515(a) 

commences, the State is unable to report valid and 

reliable data on the adjudication of due process 

complaints as required under Section 618(a)(1)(F) of 

IDEA. 

5. Because the State does not have a mechanism for 

reliably determining whether expedited hearing 

timelines are met, the State is unable to report valid 

and reliable data on expedited due process hearings in 

accordance with Section 618(a) of IDEA.

INDIVIDUAL EDUCATIONAL EVALUATIONS (IEE): 

Based on a review of documents and interviews with State 

personnel, for the reasons set forth above, OSEP concludes 

that the provision of Virginia’s regulation, 8VAC20-81-

170(B)(2)(a) and (e), are inconsistent with 20 U.S.C. § 

1415(b)(1) and 34 C.F.R. § 300.502, because the State’s 

regulation restricts a parent’s right to an IEE at public 

expense to only those areas in which the public agency had 

previously evaluated the child.

Open. 

Further actions are required to 

close this finding. 

In addition, OSEP intends to 

further investigate compliance 

and implementation of IEE 

procedures in our additional 

monitoring activities and may 

require additional corrective 

actions based on new 

analyses and findings, if any.
Page 6 – Honorable Jillian Balow

Additional Concerns around the implementation of general supervision, dispute resolution, 

and confidentiality requirements of IDEA. Based on substantial numbers of contacts from 

parents and other advocates, and additional information we have found in reviewing corrective 

actions for the 2020 monitoring findings, OSEP has identified significant concerns around the 

implementation of key requirements of IDEA that, while related to the 2020 findings, go beyond 

the scope of those findings. As a result, OSEP is notifying VDOE that we will undertake 

additional monitoring activities to address these concerns. We anticipate conducting these 

activities in August and/or September of 2023. A description of the areas of additional 

monitoring appears below.

1. General Supervision procedures for the identification and correction of noncompliance: 

General supervision is the primary mechanism for ensuring that all students in the State 

receive FAPE, no matter which school district they attend. OSEP appreciates the work 

that VDOE has undertaken to revise its monitoring procedures. However, to ensure that 

VDOE is fulfilling it general supervisory responsibilities under 34 C.F.R. §§ 300.149(a) 

and (b) and 300.600(a) and (d)(2), OSEP intends to examine the effective

implementation of the revised policies and procedures and practices. 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: The 

negative impact on children with disabilities of school closures and other limitations on 

education during the COVID-19 pandemic has been both significant and disparate. The 

Department has issued guidance on ways to mitigate the significant impact through the 

provision of 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.

On November 30, 2022, OCR issued a letter and resolution agreement resulting from its 

directed investigation of Fairfax County Public Schools. As a result of its investigation, 

OCR concluded that during the Covid-19 Pandemic, Fairfax County Public Schools 

failed or was unable to provide a FAPE to thousands of qualified students with 

disabilities in violation of Section 504 (Section 504) of the Rehabilitation Act of 1973. 

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. 

1 See, “Considerations for COVID Recovery Services for Students with Disabilities.”
Page 7 – Honorable Jillian Balow

2. State complaint policies, procedures, and practices: The appropriate and effective 

investigation and resolution of State complaints is a significant mechanism to both avoid 

resolve disputes and avoid costly and protracted hearings and litigation. 

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.

3. Due process complaint and hearing procedures and implementation: Since its inception, 

the IDEA has guaranteed a dispute resolution mechanism grounded in due process and 

providing parents with the ability to enforce IDEA’s requirements for FAPE.

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. These include inconsistencies between State rules and IDEA 

(including 34 C.F.R. §300.515(c) which sets out that a hearing or reviewing officer only 

may grant specific extensions of time beyond the periods set out in §§300.515(a) and (b) 

at the request of either party), as well as practices, as documentation submitted does not 

demonstrate that hearing officers have granted extensions only at the request of either 

party.

4. IEE policies, procedures, and practices: A comprehensive educational evaluation is the 

cornerstone to determining whether a child is eligible under the IDEA and parents who 

believe that the public agency’s evaluation of their child was either improper or 

incomplete have an important IDEA protection in the form of independent educational 

evaluation (IEE).

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. 34 C.F.R. § 300.502(b)(2).

OSEP intends to provide additional information about our monitoring activities, additional work 

with VDOE staff, and scheduling in the near future.
Page 8 – Honorable Jillian Balow

Thank you for your continued cooperation in ensuring the implementation of IDEA within 

Virginia. If you have any questions, please contact your State lead, Koko Austin at 

ayorkor.austin@ed.gov. 

Sincerely, 

Valerie Williams

cc: Samantha Hollins, State Director of Special Education