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

by fostering educational excellence and ensuring equal access. 

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OFFICE OF SPECIAL EDUCATION PROGRAMS 

February 8, 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: 

The U.S. Department of Education, Office of Special Education Programs (OSEP) is writing in

response to the Virginia Department of Education’s (VDOE or State) corrective action

documentation submitted to OSEP on September 18, 2020, October 29, 2020, March 4, 2021, 

and December 21, 2021. Some of the information in this response is also based on a telephone 

meeting with the State on January 15, 2021. OSEP has carefully reviewed the documentation and 

information and determined that the State has not demonstrated correction of all the

noncompliance identified in our June 23, 2020, Differentiated Monitoring and Support (DMS) 

monitoring letter (DMS letter). In the attached chart (DMS Response to State.VA.2.8.22) OSEP 

has detailed the outstanding issues, the previous required actions, a list of relevant documents 

submitted by Virginia, OSEP’s analysis of those documents, OSEP’s specific conclusions 

regarding correction, and what, if any, corrective actions, or additional next steps are appropriate 

to demonstrate correction. 

As you are aware, our office continues to be contacted by multiple parents and other stakeholders

in Virginia regarding the State’s system of general supervision including, but not limited to,

monitoring, due process, and policies and procedures governing independent educational 

evaluations (IEEs). While we understand that these communications only convey one side of 

often complicated situations, we remain concerned about the volume and nature of the concerns 

raised by these individuals and groups. Specifically, parents and other stakeholders have shared 

concerns about VDOE’s compliance with its general supervisory responsibilities. Through this 

letter, we are providing notice that OSEP intends to engage further with the State on the 

following allegations: 

a. Whether LEAs are properly addressing consideration of extended school year

(ESY) services.

b. Whether, in certain situations, the maximum allowable charges for evaluations

established by an LEA result in a denial of parents’ rights to an IEE at public

expense.
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c. Whether LEAs are denying parental requests for IEEs without initiating a due 

process complaint to demonstrate the public agency’s evaluation of the child is 

appropriate.

d. Whether LEAs are ensuring all access rights to special education records.

e. Whether Due Process Hearing Officers are refusing to open parents’ (virtual) 

hearings to the public.

f. Whether LEAs are providing all accommodations and services included in 

children’s IEPs that are necessary for the provision of FAPE. 

g. Whether the State’s complaint resolution process addresses allegations of 

systemic noncompliance occurring within LEAs.

In addition, in an email dated March 4, 2021, VDOE requested “written notification from OSEP 

explaining the foundation for restricting the Coordinator of Mediation from evaluating mediators 

through observation, given that the approach is permitted in other states under IDEA”. VDOE 

has asked for clarification on OSEP’s position regarding its mediation evaluation practices. As 

outlined in the attachment to this letter, OSEP remains concerned that the presence of an SEA 

employee during mediations can potentially affect the objectivity and professional interests of 

the mediator and that the SEA employee may be taking an active role in guiding the mediation 

itself-- which is prohibited under the IDEA. VDOE has not submitted any protocols, 

documentation, or other evidence to the contrary. To ensure that the mediation program is 

consistent with IDEA regulations, if Virginia intends to continue mediator evaluations that rely

primarily on the presence of an SEA employee in the mediation sessions, then it must revise its

mediation and mediator evaluation procedures to include and specify, at a minimum, the 

following:

• A requirement that mediation is conducted by only one individual.

• A requirement that the mediation evaluator is only present at the mediation session in an 

observatory role. No participation in the session is permitted.

• The frequency and duration of mediation evaluations.

• Prior written notice to parents participating in mediation sessions where a mediation 

evaluator will attend, stating that: Mediation is voluntary and parents may refuse to 

participate in mediation if they do not want the mediation evaluator to be present; the 

evaluator is an employee of the SEA; the evaluator will be present only to observe; and, 

the evaluator is prohibited from participating in the mediation.

• Parent exit surveys or other documentation demonstrating that the mediation evaluator 

was only present at the mediation sessions in an observatory role and did not participate.

As a reminder, the State must ensure this noncompliance is corrected as soon as possible, and in 

accordance with the timelines specified in the attached corrective actions. If VDOE anticipates 

difficulty in meeting the timelines including in the corrective actions attached, OSEP requests 

that the State provide a plan that includes projected dates for carrying out the required actions 

necessary to achieve full compliance.
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We thank you in advance for your prompt attention to this important matter. If you have any 

questions or would like to schedule a call to discuss OSEP’s review and conclusions in this 

matter, please contact your OSEP State Lead, Koko Austin, at (202) 245-6720. 

Sincerely,

Director

Office of Special Education Programs

Attachment

cc: Samantha Hollins, Ph.D. 

State Director of Special Education