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Want Systemic Change? Use the State Complaint Provisions Under IDEA

03/14/13
by Wrightslaw

From Jim Comstock-Galagan

Using State Administrative Complaint Provisions under IDEA to Create Systemic Change

Jim shares regulatory requirements for state complaints, resources and references, and effective strategies to use when you file a state complaint.

State complaints cover a broad range of violations of IDEA and must contain statement that LEA violated IDEA (Part B) and all the facts re complaint.

Can be used to resolve any matter related to violations of:

  • FAPE
  • child find
  • related services
  • ESY (regression and recoupment)
  • Identification
  • Lack of progress
  • Evaluation
  • Educational placement
  • …..

Every state must have procedures for filing complaints – regulations only, not in the statute.

A State Complaint may be filed by any individual (organization, individual, out-of-state individual (no longer in the  district), grandparent).

Complaint can be filed against public agency including SEA, LEA, nonprofit public charter school, or a political subdivision of state providing education services (juvenile correctional facility).

SEA remains responsible for complying with all procedural and remediation steps required in the federal regulations (34 C.F.R. 300).

The Scope of State Complaints

The SEA’s state complaint procedures must address both procedural and substantive IDEA violations.

In a complaint, the district  must have the data to support their decisions in cases.

OSEP Commentary to 2004 IDEA Regulations, 71 Fed. Register 46601 (8\14\2006).

  • State Complaints can address both individual and systemic issues.
  • In 2000, OSEP stated “the state complaint procedures are available for resolving any complaint…including complaints that raise systemic issues.” See OSEP Letter to Chief State School Officers, July 17, 2000 Page 4.
  •  In 2001, OSEP stated that “…an SEA is required to resolve any complaint …including a systemic complaint alleging a public agency [LEA] has failed to provide FAPE to a group of children with disabilities.” See OSEP Letter to Nann, September 21, 2001 Page 2.
  • In 2008, OSEP stated that “states are responsible for resolving any complaint, including complaints containing allegations of a statewide, systemic nature…” See OSEP Letter to Jonathan Zimring, July 1, 2008 Page 1.

In the commentary to the 2004 IDEA Regulations, OSEP emphasized the broad scope of State Complaint procedures:

“We believe that the broad scope of the State complaint procedures is critical to each State’s exercise of its general supervision responsibilities. …We believe placing limits on the State complaint system…would diminish the SEA’s ability to ensure its LEAs are in compliance with Part B of the Act…and may result in an increase in the number of due process complaints filed and the number of due process hearings held.”

OSEP Commentary to 2004 IDEA Regulations 71 Fed. Register 46601 (8\14\2006).

You should review the timelines and extended timelines for filing systemic complaints.

Jim also emphasizes important factors in the investigation process re on-site investigation (including OSEP requirements for SEAs), ability to submit additional information, proposal from the public agency to resolve, and mediation.

Reference: Jefferson Parish Complaint.  http://www.splcenter.org

The SEA must issue a written decision that addresses each allegation, including findings of fact and conclusions, and reasons for its final decision.

The Scope of  State Complaint Remedies

including:

  • Individual/Systemic Corrective Action Compensatory education
  • Monetary reimbursement
  • Appropriate future provision of services for all students with disabilities.

34 C.F.R. § 300.151 (b), 152(a)(5); 71 Fed. Register 46602 (8/14/2006); Letter to Copenhaver, 10/31/2008.

Proving Your Complaint

Do your research and include in the complaint:

  • statistical data
  • legal research and detailed discussion of previous IDEA violations
  • affidavits that support your your facts and claims

 

Jim Comstock-Galagan is the Executive Director of the Southern Disability Law Center (SDLC), New Orleans, LA and a faculty member at W&M Law School Institute of Special Education Advocacy (ISEA).

 

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9 responses so far ↓

  • 1 Tammie 10/26/13 at 6:18 pm

    OCR is not there to enforce the rights of any students BUT to investigate the issues at hand and form a conclusion as to whether or not there was a violation so that the parent can proceed with a court case. This is my understanding of any OCR Complaint Office. I have made several complaints to them and have found them to be at times biased but with good reason. But typically willing to hear both sides

  • 2 SPO 07/27/13 at 5:44 pm

    Leigh, If you are filing a complaint with OCR I would suggest you hire an attorney. Unfortunately, even with an attorney the school district will most likely prevail. OCR gives the districts a wonderful “out,” so to speak. OCR allows either party to propose a “resolution” to the case and if OCR accepts it, the complaint is over. Of course, OCR suggested this to my school district and even told me they were going to do it. Of course the district jumped on the chance to get rid of the complaint. OCR had their back the whole time. We had no say, no rights, absolutely nothing! Good Luck!

  • 3 Leigh 07/23/13 at 12:52 pm

    Unfortunately as we have better laws passed to protect our children’s rights some Agencies do the same to protect them. I just found out that i cannot file a complaint to the S.D.E. against a school because they have had the State Legislature pass a section that gives the school free reign. Admissions can take over a year and Federal funds are used for “independent evaluation” by agency employees. Thank goodness i can still send it outside of the state to OCR.

  • 4 carolyn 05/13/13 at 10:05 am

    I filed a complaint against the schools lack of EVERYTHING when it came to my child. I wrote emails, phone calls and NOTHING WAS RETURNED. They had all the proof they needed and still refused to do anything. When I filed the complaint the principal, and staff minus ONE brave teacher brushed it aside with lies, lies, lies. When I got the attention of the school board and gave them everything in writing from every Dr. every test on and on then and only then did they decide to move forward but that was in MARCH. They drug my name through the mud but it is ok I am glad someone finally listened and the egg on their faces is still priceless!

  • 5 Sharon L. 05/09/13 at 4:54 pm

    Carol,This happened to us. My son was too high functioning for the resource room & yet he could not function in the regular ed english or writing class due to his severe dyslexia. We requested an IEP meeting to discuss how the goals were being achieved & based on that the decision was to give my son a tutor to work with him on reading & writing. This way he got the appropriate level of teaching but did not get put into a class way over his head or way under his ability. This was not exactly what we wanted for him. We wanted him to be in the regular ed class with supports but the school offered this instead & we took it because they were willing to pay for it. It was like getting private education in a public setting.

  • 6 Morning 05/09/13 at 10:09 am

    I think this is a great article. Most parents do not have the money, resources nor time do such. In this economy, many families are maintaining. None of us entered special education with our kids thinking it would involved attorneys, lawyers and advocates. None of us ever imagined we would be fighting for the rights of our kids in this day and age. Many parents are exhausted with the process. What is happening? Some parents are networking ways to make things work for their kids inside and outside the school districts. Some of us feel like soldiers with battle fatigue after dealing with school districts. We are renewed and have found new and creative ways to educate key kids with or without the school district.

  • 7 Carol 05/07/13 at 6:29 pm

    What do you do when a district only has 2 options for a special needs child…mainstream or very low functioning class with 14 students with very varied ability levels and disabilities….only one teacher. Reading in this class only utilizes varied worksheets or making peanut/butter & jelly sandwiches. Last year we requested scientifically based core reading program. The child with autism & ADHDwas given Read 180. She did nothing but plummet all year and they kept her at the same level…no other method was proposed and no changes took places when scores keptt declining. Now, she is going to the high school. The reading materials again will not be researched based…Remedia publication assignments.Child reads at the 4-5 level,but comprehension when stories at 7th grade are read aloud to her is about 80% .How do we proceed?

  • 8 Marcela 03/18/13 at 12:00 pm

    I think it is so very important that parents of special needs children have a lawyer. We ended up having to hire a lawyer from CSNLG for my son this past year. We were trying to enroll him in school, and the school refused to put him in the class we requested. The lawyer was able to advocate for us, and he is now in a classroom. I am so happy with the outcome. This article is very informative and gives a good brief breakdown of information a parent may need. Thank you so much!

  • 9 Chuck 03/18/13 at 10:13 am

    This is a useful article to remind parents of their right to file a complaint. I believe that each state must report to OSEP the # of complaints by topic that they have during a year. If the total # & for different topics should increase a large amount this could get the attention of the state and OSEP.
    Frequently I hear from TX parents that schools do not do the actions that the state tells them to take after a complaint is investigated. State rules list a number of interventions & sanctions that the state can use when this happens. However, due to politics or something, this does not happen often. Advice on how parents can deal with this situation would be appreciated.