If a Virginia school division refuses to fix a special-ed problem after the state Department of Education tells them to, what can the state actually do about it?
Plain-English summary
The Individuals with Disabilities Education Act (IDEA) is a "cooperative federalism" statute. Local school divisions deliver special-education services, while the state (here, the Virginia Department of Education, or VDOE) is supposed to supervise and ensure compliance. A parent or other interested party can file a state complaint with VDOE alleging a school division denied a child a free appropriate public education (FAPE). VDOE investigates, makes a determination, and if it finds noncompliance, it issues corrective action.
Senator Sturtevant asked what happens if a school division simply refuses to do the corrective action.
Attorney General Jay Jones answered: the school division does not have a choice. Under federal regulation 34 C.F.R. § 300.600(e), local noncompliance must be corrected within one year of VDOE's finding. If a division stalls or refuses, VDOE is required to enforce. The federal IDEA gives VDOE escalating tools (more frequent monitoring, withholding payments, and ultimately taking over service delivery directly) and Virginia law (§ 22.1-214(E) and 8 VAC 20-81-280) gives the Virginia Board of Education authority to withhold both state and federal special-education funds from the noncompliant division and to provide services directly or by contract. Whether and which enforcement step is appropriate is fact-specific, but the AG made clear that doing nothing is not an option.
What this means for you
If you are a parent of a student with disabilities
If your child was denied FAPE and you filed a state complaint that VDOE ruled in your favor, the school division is required to implement the corrective action; this is not optional and the deadline is no later than one year after VDOE made the noncompliance finding. The opinion describes the corrective action as potentially including "compensatory services or monetary reimbursement" for your child. If the division stalls past that deadline, escalate back to VDOE in writing, citing this opinion and 34 C.F.R. § 300.600(e). VDOE has both authority and an affirmative legal duty to enforce, including by withholding the division's federal and state special-education funding.
If you administer special education at a Virginia school division
Treat any VDOE corrective-action order as a hard deadline of one year from the noncompliance finding, unless VDOE specifies a shorter timeline. Document each step of implementation; the federal regulations require VDOE to verify both that you have achieved 100% compliance with the relevant regulatory requirements going forward and that you have remediated the specific child's situation. Failure to implement does not just risk a future complaint; it triggers VDOE's escalating enforcement, starting with more frequent on-site visits and ending with the loss of all special-education funding and direct VDOE takeover of services in your division.
If you serve on a local school board
You should expect your administrators to brief the board on outstanding VDOE corrective-action orders and on whether they are on track. The opinion makes the legal exposure plain: the division's IDEA noncompliance affects "Virginia's eligibility for assistance under the IDEA," meaning your division's stall puts the entire state's federal funding at risk, with corresponding pressure from VDOE.
If you work at VDOE in special education enforcement
The opinion confirms your authority and your obligation. After notice and a hearing, you can withhold all special-education funding (state and federal) under § 22.1-214(E) and 8 VAC 20-81-280(D). You can use the withheld federal money to provide services directly, by contract, or through other arrangements under 20 U.S.C. § 1413(g). The opinion notes that federal law calls for "denied further IDEA payments" once a division "needs substantial intervention," and lays out the escalating ladder (assistance, intervention, substantial intervention) under 20 U.S.C. § 1416.
If you are a special education attorney
This opinion is useful as ammunition in two settings. First, it puts the Commonwealth on record that a school division has no discretion to ignore a corrective action order and that VDOE must enforce, which strengthens any mandamus or due-process petition aimed at forcing state action. Second, the AG cited it carefully to leave fact-specific questions (what enforcement step is appropriate, whether the underlying program is FAPE-compliant) outside the scope, so the opinion is most powerful as a procedural lever, less so as a substantive merits argument.
Common questions
Q: What is FAPE?
A: A free appropriate public education. The Supreme Court's Endrew F. decision defines it as an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. It is delivered through an Individualized Education Program (IEP) crafted for each eligible student.
Q: How long does a school division have to comply with a VDOE corrective-action order?
A: No later than one year after VDOE's identification of the noncompliance, per 34 C.F.R. § 300.600(e). VDOE may set a shorter deadline in a specific case.
Q: What kind of corrective action can VDOE order?
A: Per 34 C.F.R. § 300.151(b) and 8 VAC 20-81-200(D)(5), VDOE must address both the specific child's needs (which may include compensatory services or monetary reimbursement) and the appropriate future provision of services for all children with disabilities in the division.
Q: What enforcement options does VDOE have?
A: Federal options include more frequent monitoring, conditioning continued IDEA payments, denying further IDEA payments after a "substantial intervention" finding, and providing services directly using the withheld funds. State options under § 22.1-214(E) include withholding state and federal funds and providing services directly or by contract.
Q: Can VDOE actually take over special education in a school division?
A: Yes. Under 20 U.S.C. § 1413(g)(2) and 34 C.F.R. § 300.227(a)(2)(i), VDOE may use what would otherwise be the division's IDEA payments to provide special education and related services directly, by contract, or through other arrangements.
Q: What if the parent disagrees with VDOE's complaint determination?
A: This opinion does not address the appeal route. The opinion is about enforcement after a noncompliance finding. Parents who disagree with a finding can use the IDEA's due process hearing procedure under 20 U.S.C. § 1415, but that is a separate track.
Q: What about restricting parental access to school officials?
A: Senator Sturtevant also asked about that. The AG declined to answer because it requires fact-specific analysis, citing 2000 Op. Va. Att'y Gen. 177, 181, the long-standing practice of declining hypothetical questions.
Background and statutory framework
The IDEA is a federal statute (20 U.S.C. §§ 1400-1482) that conditions federal special-education funding on state compliance with FAPE and procedural requirements. Virginia accepts the funding and has enacted parallel state law in §§ 22.1-213 to 22.1-221, with VBOE regulations at 8 VAC §§ 20-81-10 to 20-81-340.
The structure is two-layered. School divisions ("local educational agencies" or LEAs in IDEA parlance) deliver services and write IEPs. VDOE ("state educational agency" or SEA) administers IDEA funds, formulates a state plan, monitors local programs, and enforces compliance. VDOE must annually evaluate each LEA's performance and classify it as meeting requirements, needing assistance, needing intervention, or needing substantial intervention. The classification drives what enforcement tools are available.
The state complaint procedure under 8 VAC 20-81-200 lets any interested party file a complaint with VDOE. VDOE investigates, makes findings on each issue, and if it identifies noncompliance, it must order corrective action. Local noncompliance must be corrected within one year. To verify completion, VDOE has to confirm both 100% compliance with the relevant regulatory requirements going forward and remediation of any individual case (unless the child has aged out or moved).
For enforcement, federal and state law each provide tools. Federally, 20 U.S.C. § 1416(f) protects against reductions in special-education spending by noncompliant divisions; § 1413(g) provides for conditional withholding of funds and direct VDOE delivery of services after notice and a hearing. State law in § 22.1-214(E) and 8 VAC 20-81-280 authorizes the same kinds of escalating actions at the state level, including withholding both state and federal special-education funding from a noncompliant division.
Citations and references
Statutes and regulations:
- 20 U.S.C. § 1413 (LEA eligibility and conditional funds withholding)
- 20 U.S.C. § 1416 (State monitoring and enforcement)
- 34 C.F.R. § 300.600 (State general supervision)
- 34 C.F.R. § 300.604 (State-level enforcement actions)
- Va. Code Ann. § 22.1-214 (VBOE withholding authority)
Cases:
- Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386 (2017) - defines the FAPE substantive standard
- Fry v. Napoleon Cmty. Schs., 580 U.S. 154 (2017) - exhaustion requirements under IDEA
- Sanchez v. Arlington Cnty. Sch. Bd., 58 F.4th 130 (4th Cir. 2023). Fourth Circuit application of FAPE standard
- Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005) - burden of proof in IEP disputes
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2026/25-023-Sturtevant-Issued.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jay Jones, Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services 800-828-1120, 7-1-1
March 5, 2026
The Honorable Glen H. Sturtevant, Jr.
Member, Senate of Virginia
Post Office Box 2535
Midlothian, Virginia 23113
Dear Senator Sturtevant:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.
Issues Presented
You ask whether a local school division is legally obligated to fully implement corrective actions that have been issued by the Virginia Department of Education (VDOE) to achieve compliance based on a finding that the school division denied a free and appropriate education (FAPE) to a student with disabilities. If a school division refuses to implement such corrective actions, you inquire as to VDOE's authority and duty to enforce compliance by the school division and to provide direct services or compensatory education to the student with disabilities who has been denied FAPE.
[You also inquire regarding the circumstances under which a school division may lawfully restrict parental access to school officials. That requires a fact-specific determination. When such case-by-case determinations are required, this Office has refrained from rendering an opinion on general hypothetical questions without specific facts being set forth. See 2000 Op. Va. Att'y Gen. 177, 181.]
Applicable Law and Discussion
"[T]o ensure 'that children with disabilities receive needed special education services[,]'" the United States Congress enacted the Individuals with Disabilities Education Act (IDEA). The IDEA "provides federal funds to assist state and local agencies in educating disabled children[,]" and it "conditions the receipt of such funds upon a state's compliance with certain goals and procedures," as set forth in the IDEA, its implementing regulations, and supplemental guidance issued by the U.S. Department of Education.
Primary among the IDEA's requirements is that a state receiving funds commit "to furnish[ing] a 'free appropriate public education'—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities." In general terms, a FAPE "comprises 'special education and related services'—both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." It "entails 'an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.'" Through a "cooperative federalism" model, the IDEA gives states "the primary responsibility for developing and executing" its mandates, but "imposes significant requirements to be followed in the discharge of that responsibility."
The IDEA further establishes a scheme in which both local educational agencies (LEA or school division) and the state educational agency (SEA or VDOE) have distinct duties with respect to providing a FAPE to children with disabilities. While the school division is "responsible for the direct provision of services . . ., including the development of an [individualized education program (IEP)] for each disabled student[,]" VDOE is vested with "supervisory authority" that incorporates administration of IDEA funds and formulation of a state plan that establishes policies and procedures to ensure local compliance with the IDEA. In addition, VDOE must monitor the locally administered special education programs and measure their performance in certain areas, including the provision of FAPE in the least restrictive environment (LRE).
As the entity responsible for the "general supervision" of the IDEA's implementation, VDOE is charged with ensuring that all IDEA requirements are met. The IDEA requires States to evaluate annually the extent to which each local agency meets the requirements and purposes of the IDEA. In evaluating local performance, VDOE must determine whether the school division meets requirements, needs assistance, needs intervention, or needs substantial intervention. In addition, as part of its monitoring duties, VDOE also ensures that appropriate corrective action is taken once it identifies noncompliance by a school division. Local noncompliance must be "corrected as soon as possible, and in no case later than one year after the State's identification of the noncompliance."
In addition to providing for general oversight by the State to ensure local compliance with the IDEA, the IDEA affords interested parties "the right to present a complaint 'with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.'" Consistent with the IDEA, the Virginia Board of Education (VBOE) has established complaint procedures in support of that right, whereby complaints alleging school division violations of the IDEA, including a failure to provide a FAPE, can be filed with VDOE for resolution.
If a complaint is deemed sufficient, VDOE will investigate whether the school division is in compliance with applicable laws and regulations. After conducting the investigation and considering all the facts and issues presented, VDOE "[shall m]ake a determination of compliance or noncompliance on each issue in the complaint . . . ." The complaint process must include general procedures for effective implementation of VDOE's final decision, including as needed technical assistance activities, negotiations, and corrective actions to achieve compliance. More specifically, should VDOE find a failure to provide appropriate services, it must include in its resolution of the complaint any corrective action appropriate to address the needs of the involved subject child, which may include compensatory services or monetary reimbursement. VDOE also must address the appropriate future provision of services for all children with disabilities.
The IDEA and its implementing regulations clearly envision that VDOE, in fulfilling its supervisory role, can direct a school division to take corrective action to address noncompliance that VDOE finds through its general monitoring responsibility or through its complaint process. VDOE is obligated to report that compliance again has been achieved:
[I]n order to demonstrate that [local] noncompliance has been corrected, the State must verify that the LEA . . .: (1) is correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance with the relevant IDEA requirements) . . . and (2) if applicable, has corrected each individual case of child-specific noncompliance, unless the child is no longer within the jurisdiction of the LEA . . . and no outstanding corrective action exists under a State complaint . . . decision for the child.
Accordingly, if VDOE finds that a local school division is noncompliant with the IDEA, including for failure to provide a FAPE to a student with disabilities, the school division is subject to VDOE's authority to mandate corrective measures to remedy the noncompliance.
In sum, corrective actions issued by VDOE are based on a finding that a school division has failed to comply with the requirements of the IDEA and are designed to ensure that the school division rectifies that failure and brings it back into compliance with the applicable legal requirements. It thus follows that, if a school division fails to implement outstanding corrective action, it will continue to be noncompliant and in violation of the IDEA. Because such noncompliance affects both the school division's and Virginia's eligibility for assistance under the IDEA, I must conclude, in response to your first question, that a local school division is legally obligated to fully implement corrective actions that have been issued by the VDOE to achieve renewed compliance after the school division has been found to have denied a FAPE to a student with disabilities.
You further ask what action VDOE may take to address a local school division's continued noncompliance with the IDEA. Both federal and state law set forth mechanisms available to VDOE to enforce compliance with legal requirements pertaining to the education of children with disabilities.
Federal law establishes that, whenever VDOE determines that a local school division "needs substantial intervention" the school division, after a hearing, must be denied further IDEA payments. Less severe consequences are prescribed when a school division is determined to "need assistance" or "need intervention" for multiple consecutive years. VDOE also must prohibit a noncompliant school division from reducing its special education spending. In addition, should VDOE, "after reasonable notice and an opportunity for a hearing, find[] that a [school division] . . . is failing to comply with any [applicable] requirement[,]" VDOE "shall reduce or [withhold] any further payments" to that school division until it "is satisfied that the [school division] . . . is complying with that requirement." In certain circumstances, VDOE must use the payments that otherwise would have been available to the school division to provide special education and related services directly to children with disabilities residing in the area served by that school division. Using those funds, VDOE may provide the needed special education and related services directly, by contract, or through other arrangements. States, however, are not limited to the enforcement actions specifically available under the IDEA.
Virginia law expressly authorizes the VBOE to withhold all special education funds — state and federal — from a school division that fails to establish and maintain programs of FAPE that comply with state regulations. VBOE regulations provide that:
If the Superintendent of Public Instruction, after reasonable notice and opportunity for a hearing . . . finds that a local educational agency has failed to comply with the state and federal laws and regulations and determines that compliance cannot be secured by voluntary means, the Superintendent shall issue a decision in writing stating that state and federal funds for the education of eligible children with disabilities shall not be made available to that local educational agency until it complies with the state and federal laws and regulations.
Funds withheld for noncompliance with FAPE requirements may, but are not required to be, used by VBOE to provide special education, directly or by contract, to eligible students with disabilities.
In summary, the IDEA and its implementing regulations charge VDOE with making determinations and resolving complaints regarding local school divisions' compliance with the IDEA. Depending on VDOE's findings, VDOE may be required to take enforcement action. Such enforcement action may include, under appropriate circumstances, withholding special education funds from non-compliant school divisions and using such funds to provide special education and related services directly, by contract, or through other arrangements to students affected by the school division's failure to provide a FAPE. Whether and which enforcement action may be appropriate or necessary in any set of circumstances, however, must be decided on a case-by-case basis.
Conclusion
Accordingly, it is my opinion that the Virginia Department of Education (VDOE) is responsible for monitoring and enforcing IDEA requirements in the Commonwealth's school divisions, and local school divisions are required to correct any noncompliance identified by the VDOE as soon as possible, and in no case later than one year after identification. Further, if a school division fails to correct its noncompliance, the VDOE is responsible for taking appropriate enforcement action, which may include withholding special education funds from the school division and providing special education services directly, or by contract, to affected students with disabilities.
Sincerely,
Jay Jones
Attorney General