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UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OFFICE OF SPECIAL EDUCATION PROGRAMS

DIRECTOR

January 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: 

The purpose of this letter is to summarize the current status of our review of the Virginia 

Department of Education’s (VDOE) outstanding noncompliance first identified in OSEP’s June 

23, 2020 monitoring report (OSEP’s monitoring report), and of the documentation you have 

provided to date. VDOE has submitted documents and responses to OSEP on September 18, 

2020, October 29, 2020, March 4, 2021, December 21, 2021, March 11, 2022, June 10, 2022, 

November 3, 2022, and January 11, 2023. In addition, VDOE has communicated information in 

conference calls with OSEP on January 15, 2021, May 25, 2021, April 20, 2022, and January 13, 

2023. As a result of these submissions, as detailed in OSEP’s September 1, 2022 letter, VDOE 

has corrected some, but not all of the findings. This letter provides a general summary of OSEP’s 

review and analysis of VDOE’s document submissions, except for those submitted on January 

11, 2023. After we have completed our review of the most recent document submission, we will 

provide a more detailed analysis of VDOE’s actions taken to address the identified 

noncompliance, and additional actions, if any, that are required to close out the noncompliance.

The findings and required actions set forth in OSEP's monitoring report required VDOE to 

demonstrate correction as soon as possible and in no case, beyond one year after identification. 

In OSEP’s monitoring report, OSEP included the results of its May 2019 on-site monitoring visit 

and put VDOE on notice of its failure to comply with the following requirements under the 

Individuals with Disabilities Education Act (IDEA).

• VDOE 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. § 200.331(d)(1)–(2). 

• VDOE is not exercising its general supervisory and monitoring responsibilities to 

implement its State complaint resolution system in a manner consistent with all of 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. §
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300.152, specifically in the situation where the State has developed a communication 

plan with an individual parent-complainant.

• VDOE 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.  

• VDOE 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.

• Because VDOE 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, VDOE 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.  

• Because VDOE does not have a mechanism for reliably determining whether expedited 

hearing timelines are met, the VDOE is unable to report valid and reliable data on 

expedited due process hearings in accordance with Section 618(a) of IDEA.

• VDOE 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. 

• OSEP concluded 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 independent educational evaluation (IEE)

at public expense to only those areas in which the public agency had previously evaluated 

the child. 
Page 3 – Honorable Jillian Balow

As explained in OSEP’s letter dated September 1, 2022, OSEP determined VDOE demonstrated 

compliance in the areas related to mediation. With respect to general supervision, OSEP 

determined VDOE’s evidence of its revised general supervision and monitoring system was 

sufficient to close the related finding while reserving the right to revisit the matter based on any 

subsequent information OSEP may receive. 

OSEP further concluded VDOE has not provided sufficient information to demonstrate 

correction of the identified noncompliance related to State complaint procedures, due process 

complaint and hearing procedures, and IEEs. OSEP scheduled a follow-up phone call with 

VDOE on August 30, 2022, which was rescheduled by VDOE to September 8, 2022, and 

subsequently rescheduled again to October 5, 2022, to discuss the outstanding OSEP DMS 

findings. On October 4, 2022, VDOE informed OSEP that it was going to decline to participate 

in the scheduled call because, in VDOE’s view, some of the relevant OSEP DMS subject matter 

was being raised as the subject of a Federal class action lawsuit filed in September of 2022. 

However, VDOE has since confirmed and participated in a follow-up call with OSEP on January 

13, 2023.

During the January 13, 2023 conference call, OSEP noted that a number of case closure records 

indicated that timelines for due process hearings were improperly extended at the behest of the 

hearing officer, with no indication that they were requested by either party to the hearing. The 

IDEA implementing regulations only provide for a hearing officer to grant specific extensions of 

time at the request of either party. 34 .C.F.R. § 300.515(a).

Relatedly, OSEP reviewed Virginia’s Regulation, 8VAC20-81-210(P)(9)(b), which states as 

follows:

8VAC20-81-210(P)(9)(b) In instances 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.

The practice noted in the case closure records and, on its face, the Virginia regulation 

appear inconsistent with 34 C.F.R. § 300.515(a). As we indicated on the January 13, 2023

call, the practice and the Virginia regulation also need to be addressed. 

We believe that the conference call held on January 13, 2023, was productive and we are 

committed to continuing to engage with VDOE to assist the State in closing the remaining DMS 

findings. However, please note that the noncompliance first identified in OSEP’s monitoring 

report and follow-up letters include items that represent longstanding required correction. If 

VDOE is unable to demonstrate full compliance with the IDEA requirements identified in 

OSEP’s monitoring report, this could result in the imposition of Specific Conditions on VDOE’s 

IDEA Part B grant award and could affect VDOE’s determination under section 616(d) of 

IDEA.
Page 4 – Honorable Jillian Balow

If you have any questions, please contact Koko Austin, your OSEP State Lead, at 202-245-6720 

or Ayorkor.Austin@ed.gov.

Sincerely,

 

Valerie C. Williams 

 

cc: Samantha Hollins, State Director of Special Education