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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 Comments on "Want Systemic Change? Use the State Complaint Provisions Under IDEA"


Tammie
10/26/2013

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

SPO
07/27/2013

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!

Leigh
07/23/2013

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.