Why VDOE’s State Complaint Appeals Procedures are Inconsistent with IDEA
Virginia Department of Education has built an extra step into its state complaint process: appeals. On paper, this sounds like a safeguard. In practice, it often does the opposite.
The Big Picture
Virginia Department of Education (VDOE) has built an extra step into its state complaint process: appeals. On paper, this sounds like a safeguard. In practice, it often does the opposite.
Instead of making it easier for parents to address errors, VDOE’s appeals system layers on extra rules, confusing standards, and legal jargon that don’t line up with Individuals with Disabilities Education Act (IDEA). The result is more barriers—not more safeguards.
What IDEA Requires
IDEA gives states flexibility to design their own complaint systems—but it sets minimum requirements that every state must follow. Specifically, IDEA requires that each State Educational Agency (SEA) adopt written procedures for resolving complaints (§300.151); requires that those procedures ensure a fair investigation, allow parties to submit additional information, and result in a written decision with findings, conclusions, and corrective action (§300.152); and sets the minimum requirements for what must be included in a written complaint (§300.153).
If a state chooses to add an appeal layer, that process becomes part of the state’s overall complaint resolution system. Therefore, it must also comply with §§300.151–153.
U.S. Department of Education’s (USDOE) Office of Special Education Programs (OSEP) has repeatedly reinforced this principle. States can add protections, but not barriers
Example of protection: OSEP MEMO 13-08 explains that states may choose to resolve complaints about violations that occurred outside the one-year filing deadline. This adds flexibility for families and is not inconsistent with IDEA:
“As with other procedural protections, a State may elect to provide more protections for children with disabilities and their parents than those specifically required by the IDEA, provided that the State procedure is not inconsistent with the IDEA. Therefore, an SEA may adopt a policy or procedure to accept and resolve complaints regarding alleged violations that occurred outside the one-year timeline in 34 CFR §300.153(c). In general, such a procedure would be treated as an additional protection for children with disabilities and their parents and not inconsistent with Part B. 71 FR 46606 (August 14, 2006).”
Example of a barrier: In its June 23, 2020, Differentiated Monitoring and Support (DMS) report, OSEP faulted VDOE for using a “communication plan” to block a parent from filing complaints. OSEP clarified that while communication plans are not prohibited, they cannot be used to deny or delay a parent’s right to file a state complaint:
“OSEP received information that the State informed a parent that the State would not accept further complaints from that parent. According to the State staff, communications from this particular parent are handled through a process different from that used for other parents. For this parent, all communications are conducted through email. While the parent communicates very frequently with the SEA about matters that do not constitute a violation of IDEA, the OSEP State Lead reviewed emails dating back to 2018 that included copies of at least two written State complaints filed by this parent alleging violations of IDEA requirements. When the parent received no response, the parent refiled these same complaints alleging noncompliance with IDEA requirements several times. OSEP has no information indicating that in either of these situations a formal complaint resolution was conducted, or if a letter of inquiry was issued.4
“Regarding the situation discussed above, while it is not inconsistent with IDEA for a State to establish a communication plan with a parent, the State remains responsible for resolving any complaint that meets the requirements of 34 C.F.R. § 300.153. Therefore, a communication plan with an individual parent cannot deny or delay the right of a parent to file a State complaint alleging a violation of Part B of IDEA or the Part B regulations and to have that complaint resolved in accordance with 34 C.F.R. §§ 300.151 through 300.153.”
The same logic applies to appeals. VDOE may create an appeal process, but it must still comply fully with IDEA’s requirements.
Higher Standards That Are Inconsistent with IDEA
IDEA requires every SEA to resolve complaints through a “complete and impartial investigation” with a written decision including findings of fact, conclusions, and corrective actions (§§300.151–153).
The Federal Register is clear that the state complaint system is meant to be non-judicial, accessible, and informal:
“[A] strong State complaint system provides parents and other individuals an opportunity to resolve disputes early without having to file a due process complaint and without having to go to a due process hearing.”
“The awarding of attorneys’ fees is not addressed in §300.151(b) because the State complaint process is not an administrative proceeding or judicial action, and, therefore, the awarding of attorneys’ fees is not available under the Act for State complaint resolutions.
Strip the beginning and end of the second paragraph and focus on the middle:
“. . . the State complaint process is not an administrative proceeding or judicial action . . .”
This principle was echoed in the Memorandum Opinion issued for Virginia Office of Protection and Advocacy, et al., v. Commonwealth of Virginia, Department of Education, et al., where the court described Virginia’s complaint process as:
“. . . similar to an informal settlement conference . . . intended to serve as a forum by which parties can meet and confer without the interference of the courts.”
OSEP’s March 13, 2024, DMS Report further reinforced this principle, finding VDOE noncompliant for requiring complaints to “contain all relevant documents.” OSEP explained that such a requirement exceeded IDEA’s standard under §300.153(b) and could discourage parents from filing complaints.
If VDOE can’t require extra documentation to initiate a complaint, it can’t impose appeal standards that are more restrictive than the initiation of a complaint.
Virginia Regulations and VDOE Procedures
Virginia’s regulations mention “appeal” only once:
“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.”
This authorizes VDOE to create an appeal process, but it does not specify how appeals must be structured. Once VDOE added that layer, it became part of the state’s complaint system and therefore had to comply with IDEA’s requirements. VDOE’s 2009 Complaint Appeal Procedures fall short.