Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

COMPLIANCE

GENERAL SUPERVISION

FINDING: 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 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. § 200.3321.

REQUIRED ACTIONS STATE 

DOCUMENTS 

SUBMITTED

OSEP ANALYSIS REQUIRED ACTIONS/ NEXT 

STEPS

Within 90 days of the date of this letter, consistent with the State’s general supervisory and monitoring responsibilities described above, the Virginia Department of Education (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 

Closed September 2022

Additional Concern

Provision of FAPE during the COVID-19 Pandemic and Compensatory Services: 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, the LEA 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.2 Similarly, although OCR cited violations with Section 504, the policies 

and practices identified in this letter also appear to be inconsistent with IDEA. 

In addition, OSEP is aware of State complaint decisions that were consistent with the 

policy and practices cited by OCR. Since the VDOE guidance was Statewide and 

Original finding is closed based on 

the submission documentation 

consistent with required actions

However, the consistent 

implementation of these procedures 

remains an area of concern. Further, 

we noted in our September 1, 2022,

letter, that OSEP will continue to 

monitor the State’s implementation 

of its general supervision and 

monitoring system through Statereported data and reserves the right 

to revisit the matter based on future, 

additional information that OSEP 

may receive. OSEP intends to 

further investigate the effectiveness 

of implementation of VDOE’s 

general supervision system. OSEP 

1 This citation was modified to reflect changes in the Uniform Guidance (2 C.F.R. § 200) dated November 12, 2020.

2 See, “Considerations for COVID Recovery Services for Students with Disabilities.”
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

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

because OSEP has received complaints from across the State about practices similar to 

those cited by OCR in Fairfax, OSEP will examine this matter.

will further investigate this area in 

upcoming monitoring activities and 

may require additional corrective 

actions based on new analyses and 

findings, if any.

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 

actions based on new analyses and 

findings, if any.

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 LEA 

noncompliance in a timely 

manner.

Closed September 2022 Closed. No further action is required 

for this item but see above as to 

further review of implementation.

3. The State must provide a 

copy of the notification to be 

issued to all LEAs, parent 

advocacy groups and other 

interested parties advising 

Closed September 2022 Closed. No further action is required 

for this item.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

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

STATE COMPLAINT PROCEDURES

FINDING: 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 parent-complainant.

REQUIRED ACTIONS STATE 

SUBMITTED 

DOCUMENTS

OSEP ANALYSIS REQUIRED ACTIONS 

Within 90 days of the date of this letter,

1. The State must submit to 

OSEP documentation 

demonstrating that 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.

March 2022

Document 

submission -

“Virginia’s System of 

General Supervision 

under IDEA” (pages 

25-26) (links 

contained in 

document are 

broken/incorrect)

November 3, 2022

Undated “Internal 

Office Procedures for 

Complaint Process 

Documentation” – 3 

VDOE provided its internal complaint procedures in November 2022. VDOE

previously provided its external Complaint Resolution Procedures (hardcopy) via 

email in May 2022 which is also a public document. OSEP located an updated version 

of the Complaint Resolution procedures (updated January 2022) hosted on the State’s

website: Complaint Resolution Procedures (virginia.gov)

OSEP was also provided with a copy of VDOE’s complaint tracking log for the period 

2014 – 2022 (PII omitted) from a parent. Parent obtained the logs via a FOIA request,

covering 2014 through January 2023, fulfilled by the State. 

The State potentially not addressing credible allegations of noncompliance and 

resolving complaints that meet IDEA requirements, could result in children with 

disabilities in the State not receiving FAPE, including the supports, services and 

protections afforded them by IDEA.

OSEP continues to receive information from parents, many of them meet the criteria 

for a communication plan as outlined by the State during the onsite visit, for whom

VDOE does not address the allegations submitted as a State complaint within required 

The original finding remains open.

OSEP will further investigate this 

area and the additional concerns in 

upcoming monitoring activities and 

may require additional corrective 

actions based on new analyses and 

findings, if any.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission 

February 17, 2023 

pages numbered 22, 

23, and 24 (page 22 is 

a cover page). 

Link to current State 

Complaint 

Procedures included 

in the Internal 

Procedures document 

submission. (Links 

are not valid as of 

January 11, 2023) 

Here is a valid link 

search and located 

1/11/23): 

Complaint Resolution 

Procedures 

(virginia.gov)

timelines (in accordance with IDEA minimum state complaint procedures and 

Virginia’s Complaint Resolution Procedures).

Example 1: According to emails OSEP has been copied on, a parent3

submitted a 

complaint on two occasions in September and October 2022. In response to both 

submissions, VDOE provided letters of inquiry (LOI). The parent spoke with the 

Office of Dispute Resolution and Administrative Services (ODRAS) director on 

November 9, 2022 due to an issue that arose unrelated to the issues complained. 

During that call, the parent outlined what she felt were incorrect decisions on 

sufficiency resulting in the LOIs and the ODRAS director agreed the complaint 

submitted (in September and October) was valid and was informed a Notice of 

Complaint was forthcoming. VDOE issued a Notice of Complaint on November 21, 

2022 and recorded the “submission date” as November 10, 2022 (seven (7) business 

days prior to the Notice of Complaint date consistent with VA regulations). It is 

unclear how VDOE determined November 10, 2022, as the “submission date”. 

Example 2: A parent (unidentified) submitted a complaint on December 29, 2020. The 

State issued its findings on March 15, 2021. In its letter of findings, VDOE cited a 

complaint date as January 4, 2021. The findings were issued outside of the required 60 

days based on both the submission date and the complaint date cited by the State. This 

record is not contained in the State’s tracking log by any of the dates listed in the 

Letter of Findings or records shared with OSEP. 

Example 3: A parent4submitted what she presented as a complaint on May 9, 2022. 

VDOE provided a LOI via email on May 18, 2022, outside of the State’s timeline 

regulation. 

Example 4: A parent5submitted what she presented as a complaint on June 2, 2022. 

VDOE provided a LOI via regular mail dated June 3, 2022 that was not received until 

June 16, 2022. In the June 3, 2022, the State offered a conclusion on the issue 

submitted in Parent’s complaint, stating the complaint was premature (based on its 

purported date of June 3, 2022) and offered opinions with references regarding the 

issue raised in parent’s complaint. The parent resubmitted the complaint on June 17, 

3

 The specific information can be provided to the State upon request. 

4

 The specific information can be provided to the State upon request. 

5

 The specific information can be provided to the State upon request.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

2022 providing objection to VDOE’s conclusion and additional information. To date, 

VDOE has not resolved the resubmitted complaint. 

Example 5: A parent6submitted what she presented as a complaint on July 12, 2022. 

VDOE provided a LOI via email on August 9, 2022. 

The State tracking logs provided by the parent (received via FOIA request) have 

missing information. It is not clear if the State is accurately tracking complaints 

received to ensure it resolves every complaint. 

Based upon information presented above, OSEP is unable to determine that VDOE 

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. 

Additional Concerns

OSEP notes the State’s external complaint resolution procedures documents submitted 

(and published online) appear inconsistent with the State’s complaint resolution

procedures regulations; 8VAC20-81-200(C) and (D). 

1. Timelines for determining sufficiency

a. The State regulations afford SEVEN DAYS7for the State to determine 

sufficiency and notify the writer. 

b. The State regulations afford SEVEN BUSINESS DAYS to 

acknowledge and provide a copy of the valid complaint to all parties.

c. The State’s internal complaint resolution procedures require that 

“Within seven (7) business days of the receipt of the complaint, Office 

of Dispute Resolution and Administrative Services (ODRAS) reviews 

the complaint and supporting documentation and proceeds as follows:” 

It further provides: “If ODRAS determines that the complaint is 

insufficient for any reason, the complainant and LEA are notified in 

writing ...”8 OSEP notes the inconsistency between in the use of 

business days and calendar days.

6 The specific information can be provided to the State upon request.

7 8VAC20-81-10. “Definitions: ‘Day’ means calendar day unless otherwise indicated as business day or school day. (34 CFR 300.11)”

8 The procedures outlined by VDOE appear inconsistent with the Virginia Complaint Resolution procedures requiring VDOE to determine sufficiency and notify the writer within seven (calendar) days.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission 

February 17, 2023 

d. The excerpt of the “internal procedures” (Appendix C) provided by the 

State on November 3, 2022, indicates the same timeline: “[R]esponses 

to inquiries and formal complaints must be sent out of the office within 

seven (7) business days from the initial date of receipt to document 

receipt and provide information about next steps”.

9

 

2. Relevant Issues: Neither IDEA nor the State regulations contain a specific 

requirement that the State (VDOE) identify relevant issues in reference to 

applicable laws and regulations.

10 OSEP is concerned that implementation of 

this additional step could result in VDOE not investigating all issues 

complained of as required by 34 C.F.R. § 300.152. 

a. In the Complaint Resolution procedures submitted, VDOE has outlined 

a process that is not specifically required by state regulations or IDEA. 

The process of identifying “relevant issues in reference to applicable 

laws and regulations” appears to be used as the basis for its

investigation. Within VDOE’s internal procedures, the identification 

of relevant issues in reference to applicable laws is accomplished by 

selecting from a “bank” of issues to choose from.

OSEP is concerned VDOE’s Letter of Inquiry template and sufficiency 

determination practices appear to be inconsistent with Virginia’s Complaint 

Resolution procedures regulations and these practices may result in VDOE not 

investigating all issues as required in 34 C.F.R. § 300.152. OSEP is also 

concerned that, in practice, and although not specifically required by the 

State’s regulations, VDOE decides, prior to its investigation, whether or not 

the facts stated are "sufficient to support the allegation." 

Copy of Complaint: Consistent with IDEA’s implementing regulations, (34 

C.F.R. § 300.152), Virginia’s Regulations require VDOE to send written 

notification to each complainant and the local educational agency against 

which the violation has been alleged, acknowledging receipt of a complaint. 

9

 The internal procedures outlined by VDOE are inconsistent with the Virginia Complaint Resolution procedures requiring VDOE to determine sufficiency and notify the writer within seven (calendar) days 

10 Virginia’s State complaint resolution procedures (8VAC20-81-200(D)(1)(a) require within seven business days of the receipt of a valid complaint, the Virginia Department of Education shall send written notification to each 

complainant and the local educational agency against which the violation has been alleged, acknowledging receipt of a complaint and include a copy of the complaint in addition to other requirements. VDOE’s notification 

procedures does not include providing a copy of the complaint as required by the State’s Complaint Resolution Procedures.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

The notification must include a copy of the complaint, an offer of technical 

assistance in resolving the complaint, a statement the local educational agency 

has the opportunity to propose, at the local education agency’s discretion, a 

resolution of the complaint, notification of the opportunity for the parties to 

engage voluntarily in mediation ...

OSEP notes that in its review of nine emails from VDOE containing Notices 

of Complaint and related attachments, none of the emails included a copy of 

the complaint as required by the procedures. The emails contain the Notice of 

Complaint prepared by VDOE, a copy of VDOE’s Mediation Overview

brochure, and a copy of VDOE’s Complaint Resolution Procedures. This 

appears to be a practice that is not consistent with IDEA requirements.

3. Investigation of all allegations: Parents have also alleged that VDOE does not 

address all allegations of noncompliance.

Example: In 2022, a parent (unidentified) submitted a Complaint containing 

specific allegations of noncompliance. VDOE provided the parent with a 

Notice of Complaint outlining what VDOE deemed to be the “relevant issues” 

for investigation. The parent provided written objection to VDOE’s

determination on the issues for investigation and cited specific allegations of 

noncompliance not included. The parent requested an amended Notice of 

Complaint ensuring all allegations of noncompliance were included in the 

investigation. VDOE acknowledged the request but did not amend its Notice 

of Complaint and proceeded with its investigation based on the original notice 

provided.

4. Sufficiency: OSEP also is concerned that VDOE issues LOIs even in cases 

where the parent asserts to having met all the State’s published sufficiency 

requirements.

The State’s regulations require a State Complaint to contain, among other 

things, a description of the nature of the problem of the child, including facts 

relating to the problem in order to be considered valid. 

In the State’s LOI template, there are generic reasons for identified 

insufficiency (with lines to be checked off as applicable). The reasons include 
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission 

February 17, 2023 

among others: “The complaint includes insufficient facts to support the alleged 

violations” and “other”11

. 

Example: A parent12 submitted a complaint on May 25, 2022. On May 31, 

2022, the State issued a Letter of Inquiry document, checking the 1st box on its 

template; “The complaint does not allege that the local educational agency or 

VDOE has violated a requirement of federal and/or state special education 

laws and/or regulations.” The State typed in additional commentary under 

number 1, offering its opinion and conclusion of the facts and evidence 

outlined in and submitted with the parent’s complaint. 

On July 18, 2022, a parent resubmitted her corrected Complaint addressing the 

deficiencies providing relevant Federal and/or State special education laws 

and/or regulations as cited in the May 31, 2022 LOI, as well as, raising a new 

issue. On July 21, 2022, the State issued a second LOI checking the “other” 

box as the reason for insufficiency13. The State then offered a conclusion on 

the new issue submitted in Parent’s complaint, stating the Complaint was 

premature and offered opinions with legal references regarding the issue raised 

in parent’s complaint14. The State also upheld its May 31, 2022 decision with 

respect to the issue identified in the original complaint (May 25, 2022) citing 

the issue as “duplicative”15. 

Example: A parent16 submitted what she presented as a State Complaint on 

October 21, 2022. On November 1, 2022 (11 calendar days after submission), 

the State issued a Letter of Inquiry stating the complaint did not meet the 

State’s sufficiency requirements. In the State’s Letter of Inquiry template, 

there are generic reasons for insufficiency (with lines to be checked off as 

11 It is not clear which state regulation on sufficiency the “other” box would apply.

12 The specific information can be provided to the State upon request. 

13 It is not clear which state regulation on sufficiency the “other” box would apply.

14 34 C.F.R. § 300.152 requires the State to review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act and issue a written decision to the 

complainant that addresses each allegation in the complaint and contains findings of fact and conclusions and the reasons for the SEA's final decision. 

15 Ibid.

16 The specific information can be provided to the State upon request. 
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission 

February 17, 2023 

applicable). The reasons include: The complaint includes insufficient facts to 

support the alleged violations17.

DUE PROCESS COMPLAINT AND HEARING PROCEDURES 

FINDING: 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. § 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 

b. VDOE does not ensure that its LEAs track the implementation of the resolution timelines in 34 C.F.R. § 300.532(c)(3) and that hearing officers track the implementation 

of the expedited due process hearing timelines in 34 C.F.R. § 300.532(c)(2) in order to properly track due process hearing decision timelines. 

2. 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. 

3. 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. 

4. 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. 

REQUIRED ACTIONS STATE 

SUBMITTED 

DOCUMENTS 

 

1.a. The State has a 

mechanism for tracking the 

timelines for the resolution 

process required under 34 

C.F.R. § 300.510 to determine 

November 3, 2022 

a. Case Closure 

Summaries 

The documentation provided by the State, which includes both Pre-Hearing Orders 

and Case Closure summaries, demonstrate the State has met the required action. 

No further action is required for this 

item. 

17 OSEP is concerned VDOE’s Letter of Inquiry template and sufficiency determination practices are inconsistent with Virginia’s Complaint Resolution procedures regulations and these practices may result in VDOE not 

investigating all issues as required in 34 C.F.R. § 300.152. The State’s regulations do not require VDOE to decide on whether the facts are "sufficient to support the allegation"; that determination should be made in the 

investigation. 
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

when: resolution meetings 

occur; the 30-day resolution 

period or the adjusted 

resolution period has 

concluded; and the 45-day 

hearing timeline commences.

b. Summary of Due 

Process

c. Hearing Officer 

Reminders 

(5/26/22) 

includes:

d. Link Managing 

Due Process 

Timeline for 

Hearing Officers 

(not a valid link 

as of Jan 13, 

2023)

e. Link to 

Navigating the 

Maze of Due 

Process (link not 

valid as of 

January 13, 2023)

f. Superintendent’s 

Memo dated 

March 11, 2022

with proof of

distribution

1.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 

The documents 

submitted for the 

required actions are 

the same as above in 

1. a.

The documentation provided by the State, which includes both Pre-Hearing Orders 

and Case Closure summaries, demonstrate the State has met the required action.

No further action is required for this 

item.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

due process hearings and 

determinations in those 

hearings occur within the 

timelines required in 34 C.F.R. 

§ 300.532(c)(2).

1.c. Hearing officers are 

receiving appropriate training 

allowing them to apply and 

track the resolution period 

timelines for all due process 

hearings.

The documents 

submitted for the 

required actions are 

the same as above in 

1. a.

The documentation provided by the State, which includes both Pre-Hearing Orders 

and Case Closure summaries, demonstrate the State has met the required action.

No further action is required for this 

item.

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 

The documents 

submitted for the 

required actions are 

the same as above in 

1.a. 

IDEA’s Due Process regulations require a fair and impartial means for parties to

resolve disputes. The State is required to report accurate dispute resolution data as 

part of the data reported to the Department annually. Section 618 of the IDEA 

requires that each State submit data about children ages 3-21, who receive special 

education and related services under Part B of IDEA. OSEP reviews and evaluates the 

timeliness, completeness, and accuracy of the data submitted by States to meet the 

reporting requirements under Section 618 of IDEA. OSEP also conducts year to year 

change analysis on data submitted by the States.

Under 34 C.F.R. §300.515(c), a hearing or reviewing officer may grant specific 

extensions of time beyond the periods set out in §§300.515(a) and (b) at the request of 

either party. OSEP notes that IDEA does not prescribe any additional conditions or 

requirements for extension requests. 

Documents provided by VDOE on January 11, 2023, indicate that Hearing Officers 

extended hearing timelines without documenting that it was based on a request by 

either party in six out of seven (85%) of 2021 hearings resulting in a decision. In those 

matters, Hearing Officers often included statements such as “the parties agree” or 

simply “[the extension] is in the best interest of the student.” 

On January 23, 2023, VDOE provided an email response to OSEP’s January 19, 2023 

email, alleging with respect to the continuances:

1. "[M]any of these cases were rendered within the relevant timeline, regardless 

of whether a continuance was granted”;

The original finding remains open.

OSEP will further investigate this 

area and the additional concerns in 

upcoming monitoring activities and 

may require additional corrective 

actions based on new analyses and 

findings, if any.

.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

1, 2020, through June 30, 

2021.

2. “For those that did involve a continuance - most of the relevant continuances 

occurred either on Pre-Hearing Conference calls or at the end of a Due Process 

Hearing”; and,

3. "Our Hearing Officer Evaluators, who routinely sit in on the first two PreHearing Calls and the first two days of hearing (sometimes more), were 

present for some of the relevant continuance discussions and reported that the 

continuance was requested by a party or parties.”

OSEP notes that there is an apparent discrepancy between the information contained 

in the Case Closure reports, which VDOE has explained they use to track timelines, 

and the alleged reports from the Hearing Officer Evaluators. This further calls into 

question the State’s due process hearing data collection processes and whether it 

provides 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.

Additional Concerns:

As noted in our letter to the State, dated January 17, 2023, a provision in Virginia law 

appears inconsistent with IDEA requirements. Specifically, the provision in Virginia 

Administrative Code 8VAC20-81-210(P)(9)(b) which states: “[I]nstances where 

neither party requests an extension of time beyond the period set forth in this chapter, 

and mitigating circumstances warrant an extension, the special education hearing 

officer shall review the specific circumstances and obtain the approval of the Virginia 

Department of Education to the extension” is inconsistent with the language in 34 

C.F.R. § 300.515(c), which addresses the authority to grant extensions of the hearing 

timeline. In a telephone conference held on January 13, 2023, State representatives 

indicated that this provision was passed to address a situation where a hearing officer 

died in the middle of a hearing. As discussed, it is hard to imagine that in such 

circumstances, either the parent or school district would not request a timeline 

extension for the appointment of a new hearing officer. Moreover, the provision at 

issue is not limited to such situations.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

Under 8VAC20-81-210, it appears that a request of either party to a non-expedited 

hearing for specific extensions of time beyond the periods set out in that chapter, may 

only be granted based on a determination that the extension is in the best interest of 

the child.

In its May 4, 2022, and November 3, 2022, submissions, VDOE provided its Due 

Process and Hearing procedures documents for Hearing Officers (and ODRAS staff); 

the documents are titled “Navigating the Maze of Due Process” and “Managing Due 

Process Timeline for Hearing Officers”. OSEP noted the following statements: 

• On page eight of the Navigating the Maze document, “A hearing officer may 

grant specific extensions of the timeline beyond the 45-calendar day period at 

the request of either party only when it serves the best interest of the child. The 

hearing officer must document extensions in writing to the parties and VDOE, 

including establishing a new date for issuing the decision. 

• On pages six and seven of the Managing Due Process Timeline document, 

VDOE provides information regarding allowable extensions to the 45-day 

time-period. However, the citations relied upon in the procedures are incorrect. 

The citations provided in the document are: 8 VAC § 20-81-210. G., which

governs the amendment of the due process notices; and 34 C.F.R. § 

300.515(d), which governs time and place of the hearing. Additionally on page 

7, VDOE’s document emphasizes Virginia Regulations require continuances 

granted must be in the “best interest of the child” and refers to the applicable 

regulation (8 VAC § 20-81-210(P)(9)).

• On page 24 of the Managing the Due Process Timeline, the State’s guidance 

provides that reports must document the facts justifying the extension and 

outline the specific facts that indicated the extension was in the best interest of 

the child. The State’s procedures emphasize “It is absolutely essential that 

there be a finding that the extension is in the best interest WITH 

SUPPORTING REASONING.” 

As previously noted, under 34 C.F.R. §300.515(c), a hearing or reviewing officer may 

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

the request of either party. Generally, there will be many reasons for requesting a 

specific extension of the timelines, including, as noted above, the unexpected illness 
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

or death of one or more hearing participants or the officiant. Appropriate legal 

standards would generally allow broad discretion to a presiding hearing officer in 

considering the equities of any parental request for an extension, whether or not the 

parent has proven that the extension is in the child’s best interest. See 34 C.F.R. 

§300.511(c)(iv). The IDEA does not contain this additional burden on parents. or

limitations on the hearing officer’s authority to consider a parent’s request consistent 

with appropriate legal standards. However, the above-noted provision appears to 

impose a limitation for granting parental requests for extensions and an additional 

burden on parents that must always be met. That is, because the best interest of the 

child requirement appears to be a significant and substantive standard that may be

applied to impose an additional burden and limit a parent’s procedural protections, 

OSEP intends to review this matter further with the State.

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 adjudicated 

due process hearing decisions 

to be consistent with the 

required actions described 

above.

The documents 

submitted for the 

required actions are 

the same as above in 

1. a.

VDOE has provided a notification as required with respect to the changes in tracking 

and monitoring resolution sessions. 

No further action is required for this 

item. 

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(c)(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

REQUIRED ACTIONS STATE OSEP ANALYSIS REQUIRED ACTIONS/ NEXT 
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

SUBMITTED 

DOCUMENTS

STEPS

Within 90 days of the date of this letter, the State must provide:

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.

Closed September 2022 No further action is required for this 

item.

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 session.

Closed September 2022 No further action is required for this 

item.

INDIVIDUAL EDUCATIONAL EVALUATIONS

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 Individual Independent 

Evaluation (IEE) at public expense to only those areas in which the public agency had previously evaluated the child. 

REQUIRED ACTIONS STATE 

SUBMITTED 

DOCUMENTS

OSEP ANALYSIS REQUIRED ACTIONS/ NEXT 

STEPS

Within 90 days of the date of this letter, the State must:
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission

February 17, 2023

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 this 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.”

Based on the documentation and information provided, OSEP has determined the 

State has complied with required action 1 for this section.

No further action is required for this 

item.

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; 

Based on the documentation and information provided, OSEP has determined the 

State has complied with required action 1 for this section.

No further action is required for this 

item.
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission 

February 17, 2023 

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.

Based on the documentation and information provided, OSEP has determined the 

State has complied with required action 3 for this section. 

The State has finalized changes to its regulations found at Virginia Administrative 

Code 8VAC20-81-170(B)(2)(a) and (e). 

https://law.lis.virginia.gov/admincode/title8/agency20/chapter81/section170/ 

No further action is required for this 

item. 

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 

State response Memo 

11/3/2022: 

Reminder of the 

Superintendent’s 

Memo 059-22 

directing LEAs to 

conduct a review of 

their policies, 

procedures, and 

practices relating to 

IEEs. 

January 23, 2023 

(phone call): State 

intends on updating 

Parents of a child with a disability have a right to obtain an IEE, broadly defined as 

"an evaluation conducted by a qualified examiner who is not employed by the public 

agency responsible for the education of the child in question.” When the student’s 

parents disagree with the school district’s evaluation and request an IEE at the public 

expense, the school district must pay for the IEE or request a due process hearing to 

defend its evaluation. This includes providing an IEE for assessments the public 

agency did not perform or defending its evaluation at a due process hearing. 

OSEP is concerned that it appears that VDOE has not required LEAs to revise their 

policies, procedures, practices in a manner consistent with 34 C.F.R. § 300.502. 

Specifically, OSEP has identified at least five LEAs18 that continue to have 

“approval” procedures for IEEs. Our review of examples of procedures that were 

provided to OSEP, indicate that these LEAs continue to engage in “approval” or 

“denial” of IEEs in a manner that is inconsistent with IDEA requirements. For 

example, it appears that LEAs have issued denial letters for various reasons without 

The original finding remains open.

OSEP will further investigate this 

area and the additional concerns in 

upcoming monitoring activities and 

may require additional corrective 

actions based on new analyses and 

findings, if any. 

18 OSEP has not conducted a comprehensive review of LEA policies, procedures, and practices but has been made aware of examples in Chesapeake, Fairfax, Hanover, Henrico, and Powhatan Public Schools 
Enclosure 

OSEP’s Response to the Virginia Department of Education’s Differentiated Monitoring System Document Submission 

February 17, 2023 

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 must, without 

unnecessary delay, either: 

i. Initiates a hearing under 34 

C.F.R. § 300.507 to show that 

its evaluation is appropriate; or 

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. 

outdated guidance its 

website in the future 

(no date given). 

State advised it has 

provided guidance to 

LEAs regarding IEEs 

requirements under 

IDEA and 

investigates potential 

noncompliance with 

IDEA’s IEE 

regulations raised in 

State Complaints. 

The State does not 

review LEA policies. 

seeking a hearing, including two (2) denials because the requested independent 

assessments were not previously conducted by the LEA (citing its refusal to conduct 

the requested evaluation). These local-level policies, procedures and practices also 

appear to be inconsistent with IDEA’s regulations that require the public agency to 

either fund (provide) the IEE (with an exception) or file a due process complaint. In 

these instances, it does not appear that the LEA filed for a due process hearing to 

defend the original evaluation or its scope. 

Additional Concerns: 

Under 34 C.F.R. § 300.502(e)(1), when an IEE is at public expense, the criteria for the 

evaluation, including the qualifications of the examiner, must be the same as the 

criteria that the public agency uses when it initiates an evaluation. In OSEP’s review 

of State-submitted and publicly available documents and information, we identified an 

apparent discrepancy in one school district between the qualifications used for hiring 

speech language pathologists that conduct evaluations for and the published criteria of 

evaluators who can conduct and IEE.19

19Compare, Hanover County Public Schools IEE criteria online (retrieved February 16, 2023): Guidelines and Criteria for Independent Educational Evaluations (sharpschool.com) and Speech Pathologist Job announcement: 

https://www.schooljobs.com/careers/hcps/jobs/3819599/2023-24-school-year-speech-language-pathologist