Current through Register Vol. 40, No. 16, March 25, 2024
A. The Virginia Department of Education
maintains and operates a complaint system that provides for the investigation
and issuance of findings regarding violations of the rights of parents or
children with disabilities. The Superintendent of Public Instruction or
designee is responsible for the operation of the complaint system. (
34 CFR
300.151 )
B. A complaint may be filed with the Virginia
Department of Education by any individual, organization, or an individual from
another state and shall: ( 34 CFR 300.153 )
1. Be in writing;
2. Include the signature and contact
information for the complainant;
3.
Contain a statement that a local educational agency has violated the Act or
these special education regulations;
4. Include the facts upon which the complaint
is based;
5. If alleging violations
with respect to a specific child, include:
a.
The name and address of the residence of the child;
b. The name of the school the child is
attending;
c. In the case of a
homeless child or youth (within the meaning of § 725(2) of the
McKinney-Vento Homeless Act (
42 USC
11434 a(2) ), available contact information
for the child, and the name of the school the child is attending;
d. A description of the nature of the problem
of the child, including facts relating to the problem; and
e. A proposed resolution of the problem to
the extent known and available to the party at the time the complaint is
filed;
6. Address an
action that occurred not more than one year prior to the date the complaint is
received;
7. Contain all relevant
documents; and
8. Be provided
simultaneously to the local educational agency or public agency serving the
child.
C. Within seven
days of a receipt of a complaint, the Virginia Department of Education
determines if the complaint is sufficient according to subsection B of this
section. If it is determined that the complaint is insufficient, the Virginia
Department of Education notifies the complainant and the local educational
agency in writing. The complainant is given directions for resubmission of the
complaint to the Virginia Department of Education.
D. Upon receipt of a valid complaint, the
Virginia Department of Education shall initiate an investigation to determine
whether the local educational agency is in compliance with applicable law and
regulations in accordance with the following procedures: (
34 CFR
300.151 and
34 CFR
300.152 )
1.
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.
a. The
notification sent to the local educational agency shall include:
(1) A copy of the complaint;
(2) An offer of technical assistance in
resolving the complaint;
(3) A
statement that the local educational agency has the opportunity to propose, at
the local educational agency's discretion, a resolution of the
complaint;
(4) Notification of the
opportunity for the parties to engage voluntarily in mediation;
(5) A request that the local educational
agency submit within 10 business days of receipt of the letter of notification
either:
(a) Written documentation that the
complaint has been resolved; or
(b)
If the complaint was not resolved, a written response, including all requested
documentation. A copy of the response, along with all submitted documentation,
shall simultaneously be sent by the local educational agency to the parents(s)
of the child who is the subject of the complaint or their attorney. If the
complaint was filed by another individual, the local educational agency shall
also simultaneously send the response and submitted documentation to that
individual if a release signed by the parent(s) has been provided.
b. The notification
sent to the complainant and the local educational agency shall provide the
complainant and the local educational agency with an opportunity to submit
additional information about the allegations in the complaint, either orally or
in writing. The Virginia Department of Education shall establish a timeline in
the notification letter for submission of any additional information so as not
to delay completion of the investigation within 60 calendar days.
c. If the complaint is filed by an individual
other than the child's parent(s) and/or their legal counsel, the Virginia
Department of Education sends written notification to the complainant
acknowledging receipt of the complaint. The complainant is notified that the
parent will be informed of the receipt of the complaint and provided a copy of
the complaint and pertinent correspondence. The Virginia Department of
Education's final determination of compliance or noncompliance will be issued
to the parent(s) and the local educational agency, unless the complainant has
obtained and filed the appropriate consent for release of
information.
2. If a
reply from the local educational agency is not filed with the Virginia
Department of Education within 10 business days of the receipt of the notice,
the Virginia Department of Education shall send a second notice to the local
educational agency advising that failure to respond within seven business days
of the date of such notice will result in review by the Superintendent of
Public Instruction or designee for action regarding appropriate
sanctions.
3. The Virginia
Department of Education shall review the complaint and reply filed by the local
educational agency to determine if further investigation or corrective action
needs to be taken.
a. If the complaint is
also the subject of a due process hearing or if it contains multiple issues of
which one or more are part of that due process hearing, the Virginia Department
of Education shall:
(1) Set aside any part of
the complaint that is being addressed in the due process hearing until the
conclusion of the hearing; and
(2)
Resolve any issue in the complaint that is not a part of the due process
hearing involving the same parties.
b. If an issue raised in the complaint has
previously been decided in a due process hearing involving the same parties,
the Virginia Department of Education shall inform the complainant that the due
process hearing decision is binding.
c. The Virginia Department of Education shall
resolve a complaint alleging that the local educational agency has failed to
implement a due process hearing decision.
4. During the course of the investigation,
the Virginia Department of Education shall:
a.
Conduct an investigation of the complaint that shall include a complete review
of all relevant documentation and may include interviews with appropriate
individuals, and an independent on-site investigation, if necessary.
b. Consider all facts and issues presented
and the applicable requirements specified in law, regulations, or
standards.
c. Make a determination
of compliance or noncompliance on each issue in the complaint based upon the
facts and applicable law, regulations, or standards and notify the parties in
writing of the findings and the bases for such findings.
(1) The Virginia Department of Education has
60 calendar days after the valid written complaint is received to carry out the
investigation and to resolve the complaint.
(2) An extension of the 60-calendar-day time
limit may occur if exceptional circumstances exist with respect to a particular
complaint or if the parties involved agree to extend the time to engage in
mediation or other alternative means of dispute resolution.
(3) Both parties to the complaint will be
notified in writing by the Virginia Department of Education of the exceptional
circumstances, if applicable, and the extended time limit.
d. Ensure that the Virginia Department of
Education's final decision is effectively implemented, if needed, through:
(1) Technical assistance
activities;
(2) Negotiations;
and
(3) Corrective actions to
achieve compliance.
e.
Report findings of noncompliance and corresponding recommendations to the party
designated by the Superintendent of Public Instruction for review, or where
appropriate, directly to the Superintendent of Public Instruction for further
action.
f. Notify the parties in
writing of any needed corrective actions and the specific steps that shall be
taken by the local educational agency to bring it into compliance with
applicable timelines.
5.
In resolving a complaint in which a failure to provide appropriate services is
found, the Virginia Department of Education shall address:
a. The failure to provide appropriate
services, including corrective action appropriate to address the needs of the
child, including compensatory services, monetary reimbursement, or other
corrective action appropriate to the needs of the child; and
b. Appropriate future provision of services
for all children with disabilities.
E. Parties to the complaint procedures shall
have the right to appeal the final decision to the Virginia Department of
Education within 30 calendar days of the issuance of the decision in accordance
with procedures established by the Virginia Department of Education.
F. When the local educational agency develops
a plan of action to correct the violations, such plan shall include timelines
to correct violations not to exceed 30 business days unless circumstances
warrant otherwise. The plan of action will also include a description of all
changes contemplated and shall be subject to approval of the Virginia
Department of Education.
G. If the
local educational agency does not come into compliance within the period of
time set forth in the notification, the matter will be referred to the
Superintendent of Public Instruction or designee for an agency review and
referral to the Virginia Board of Education, if deemed necessary.
H. If, after reasonable notice and
opportunity for a hearing by the Virginia Board of Education, under the
provisions of
8VAC20-81-290, it is determined
that the local educational agency has failed to comply with applicable laws and
regulations and determines that compliance cannot be secured by voluntary
means, then the Superintendent of Public Instruction shall issue a decision in
writing stating that state and federal funds for the education of children with
disabilities shall not be made available to that local educational agency until
there is no longer any failure to comply with the applicable law or regulation.
(§ 22.1-214E of the Code of Virginia)
I. The Virginia Department of Education's
complaint procedures shall be widely disseminated to parents and other
interested individuals, including parent training and information centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities. ( 34
CFR 300.151 )
Statutory Authority
§§ 22.1-16 and 22.1-214 of the Code of
Virginia; 20 USC § 1400 et seq.; 34 CFR Part
300.
