The state says it’s fixing special education oversight in Virginia. Advocates wonder if it will be enough.

By: - November 2, 2020 12:02 am

The Virginia Department of Education is located in the James Monroe Building in Richmond. (Scott Elmquist/ Style Weekly)

The Virginia Department of Education is quietly implementing changes in response to a federal report that found serious deficiencies in how the agency monitors and enforces compliance with special education law. 

In a memo circulated to local school districts last month, state Superintendent James Lane wrote that the agency was revising its policies and procedures to implement “required actions” laid out in the June letter from the U.S. Department of Education’s Office of Special Education Programs. 

That report found VDOE was, in many ways, failing to ensure that local school divisions were complying with the Individuals with Disabilities Education Act, a 1975 federal law that ensures a “free appropriate public education” to students with disabilities. It outlined more than half a dozen directives to “ensure that all of [the state’s] LEAs” —  local educational agencies — were in compliance with the law.

VDOE contested multiple aspects of the report in a 10-page letter from Samantha Hollins, the assistant superintendent of special education and student services — a response that was met with vehement disagreement by more than a dozen parents of special education students in Virginia. The agency was legally mandated to provide the federal government with a corrective plan, but VDOE spokesman Charles Pyle declined to confirm whether the department still disagreed with many of the federal agency’s conclusions.

“As discussed above, VDOE is addressing the findings of the monitoring letter,” he wrote in an email on Thursday.

But advocates said it’s still unclear whether the policies outlined in the memo — which largely address internal processes within VDOE — will substantially change how parents experience Virginia’s special education complaint process. In July, multiple families told the Mercury the process was — at best — “unfriendly to parents.” At its worst, one parent described the state response as “hell.”

“I’m not sure how much difference this may make to parents who are on the ground on the front end of this process,” said Rachael Deane, legal director of the Legal Aid Justice Center’s JustChildren program. “I think what advocates are wondering now is what VDOE is actually doing to address the imbalance of power between school divisions and parents when special education challenges arise.”

Part of Lane’s three-page memo outlines “general supervision and monitoring procedures” that VDOE “has established and will continue to implement” over local school divisions. Those include on-site comprehensive reviews at schools identified through the department’s own risk assessment data, according to the document, and a regular monitoring schedule for all school divisions that will require them to self-assess their compliance with special education laws. Even schools that report complete compliance will be “randomly selected for a desk/on-site monitoring visit to verify” those self reports, according to the memo.

Pyle did not identify which of the four listed monitoring policies were new, writing that the memo “describes existing policies and procedures as well as new ones being implemented beginning in the 2020-2021 school year.” The Mercury requested a phone interview with a VDOE official to discuss the changes, to which Pyle responded that “Dr. Hollins is not available this week.”

Deane said many of the listed procedures appeared to be clarifying the state’s review process. “It’s obviously putting local divisions on notice,” she said. 

One of the key findings in the federal report was a lack of general supervision by VDOE, which only conducts on-site monitoring at 3 to 4.5 percent of the state’s hundreds of local schools every year.

“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,” federal officials wrote in June. 

In addition to random inspections for schools who report 100 percent compliance with special education laws, Lane wrote that violations identified “by any means” would lead to an official notification letter and require schools to develop a corrective action plan. Noncompliance must be closed within a year of the department notifying the district, according to the memo.

But Cheryl Poe, a special education advocate based in Norfolk, said there were still clear problems with allowing local districts to self-assess their adherence with the law and base on-site inspections off performance data which — in many cases — schools provide.

“You’re asking the person who has been accused of being noncompliant to investigate themselves,” she added. “Like, how does that work?”

Pyle also sent the Mercury an updated guidance document for due process hearings — one of the official mechanisms for resolving disputes between parents and school systems over special education services. In June, OSEP wrote that the state had no system in place for ensuring that school systems met federally mandated timelines for scheduling meetings, which in most cases are required to be held at least 15 days after complaints are received. 

The federal agency also reviewed 26 hearing decisions on VDOE’s website and found that “none…included a factual description” of whether the timeline was met.

The new documents “detail the procedures put in place to ensure that timelines are met in accordance with federal and state laws as well as fulfilling the required actions in the DMS letter from the U. S. Department of Education,” Pyle wrote on Thursday. He did not respond to a question on whether future hearing decisions posted on the VDOE website would detail whether the resolution meetings took place within the mandated schedule. 

Multiple families and advocates told the Mercury it was common for the state to grant extensions giving school systems additional time to respond to complaints without offering the same option to parents. Deane said it spoke to broader concerns about inequities within the process of submitting and resolving special education complaints — an arduous process that often requires parents to hire lawyers or advocates familiar with federal and state laws.

“VDOE has not always done a good job of investigating complaints, and so the remedies ordered are often without teeth,” she added. “I think that has been a frustration to many parents. The remedy is often, ‘Well, have another meeting,’ which puts parents back in the same situation that gave rise to the complaint in the first place.”

Based on the memo alone, it’s unclear whether VDOE is in the process of correcting one of the major findings in the report and a consistent complaint from parents — that the agency doesn’t have a system in place for addressing potential violations outside its formal complaint process, which often involves kicking grievances back to the local school system. Federal officials detailed multiple instances when families or advocates attempted to copy department leaders on emails or, in one case, reached out directly to request that an issue be resolved independently.

“Completely ignoring credible allegations of noncompliance,” the OSEP wrote, “is not a reasonable method of exercising the State’s general supervisory responsibilities.” The Mercury asked Pyle if VDOE was developing any new policies to ensure that complaints made outside the formal process were addressed by the agency.

“The changes being put in place, and the policies, procedures and practices being updated, are described in the Superintendent’s Memo provided and are publicly available,” he responded.

The memo does detail two specific changes to address some of the federal findings. One is language clarifying that any mediator provided for special education disputes “is not an employee of any LEA or the VDOE.” Federal regulations require the state to provide independent mediators, but the OSEP report found that the state’s own mediation coordinator regularly sat in on sessions between parents and staff as part of the formal arbitration process.

Hollins disputed the finding in her letter, writing that the coordinator only attended sessions as a silent “quality control measure” to observe new mediators. But one parent provided the Mercury with a 2018 mediation agreement between her and Fairfax County Public Schools that listed the state’s coordinator, Art Stewart, as the only mediator for the session.

Lane wrote that VDOE had also “worked with OSEP to clarify guidance concerning the provision of an Independent Educational Evaluation (IEE),” which assesses a student for potential learning disabilities. Schools are required to provide evaluations to parents under the federal Child Find law, which tasks them with identifying and screening students with potential disabilities and providing them with services, if necessary. 

But they’re also required to pay for independent evaluations if a parent disagrees with their results, unless they can prove that a student was assessed appropriately.

Federal investigators found that many school systems only agreed to provide independent evaluations for areas they had already assessed. For example, Poe said, if a school did not evaluate a student for hearing disabilities, but parents requested an independent evaluation to determine if hearing played a role in their child’s learning difficulties, schools sometimes refused to pay for that component of the evaluation on the grounds that they had not determined the assessment to be necessary.

“I think that the correction of the terminology for IEEs was one area they did a good job with,” Poe added.

The memo removes the word “component” from state regulations and clarifies that any evaluation or re-evaluation of a student must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” 

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Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.