You Need to Know Before Filing a Complaint
by Pat Howey, Advocate
rarely file complaints and even more rarely advise parents to file
Why? Because in most cases, there is no real legitimate remedy, even when
the school is found to be in violation.
Countless excited parents and advocates have called to tell me that
they "won" a complaint. My usual response is, "What
did you 'get'"?
After a few seconds of silence, they explain that the school was ordered
to change what they were doing and must provide documentation to the
state that they have completed the required changes.
If the complaint involved a violation about a service - such as failure
to provide an extended school year or failure to provide a related
service that is already in the child's IEP -- the state will very
very rarely order the school to provide that service.
Instead, the state will order the school to convene an IEP team meeting
to determine whether its violation caused the child a denial of FAPE.
If the IEP team decides that child was denied FAPE, the team
is ordered to provide an appropriate amount of compensatory education.
So, what have the parents accomplished?
1. The school will clean up its act -- on
In reality, nothing changes because the school now knows what documentation
the state requires. Rarely will any other parent ever "win"
on this issue again because the parent who filed the original complaint
taught the school what it needs to do to clean up its act and cover
up what it is doing in practice. The state looks at the school's documentation,
not at the school's actual practices.
(If it wasn't written down, it didn't happen. If it was written down,
it did happen, even when it didn't.)
2. The parent will "win" another
Because the parent is already entitled to convene an IEP meeting at
almost any time, they have really not "won" anything. The
state has given them what they already have.
3. The school will send more school personnel
to the IEP meeting.
It is likely that the parent has attended
many IEP meetings in an unsuccessful attempt to resolve the issue
that caused the parent to file the complaint.
So, what the parent "won" is another case conference or
IEP meeting to which the school will invite even more staff members
-- and the school now knows how to document the meeting.
the parent's complaint was about the school's failure to provide a
related service, rest assured that the service provider will be invited
to the meeting. Before the meeting, he or she will have been instructed
to find reasons why the child no longer needs that service.
Since the child was not deprived of FAPE after all, the school team
will find no need to provide compensatory educational services.
4. The parent is unlikely to win on this
issue at due process.
Most important, if you file a complaint, it is likely that you will
lose the ability to ever bring up that same issue before a
hearing officer in a due process hearing. If you "lose"
the complaint, a hearing officer is likely to defer to the findings
of the complaint investigator.
The moral of this story is this: Before you file a complaint, be very,
very certain that you will NEVER
want to file for a hearing on the same issue.
Give careful thought to what you will "win" if you win your
complaint. If your state offers no real remedy, it may be wise to
consult an attorney before taking any action.
Likewise, advocates should be very, very careful before filing a complaint
on behalf of a parent, as you may be jeopardizing their future rights
Meet Pat Howey
Patricia Howey has supported families of children with disabilities since 1985. She has a specific learning disability and became involved in special education when her youngest child entered kindergarten. Pat has children, grandchildren, and great-grandchildren who have a variety of disabilities and she has used her experience to advocate for better special education services for several of them.
Pat is a charter member of the Council of Parent Attorneys and Advocates (COPAA), serving on its Board of Directors from 2000 through 2003. She has been a Commissioner on the Tippecanoe (County) Human Relations Committee, a graduate of Leadership Lafayette and Partners in Policymaking, and a member of the Wrightslaw Speakers Bureau. She has been on the faculty of the College of William and Mary Law School’s Institute of Special Education Advocacy since its inception in 2011.
Pat has an A.S. and a B.A. in Paralegal Studies from Saint Mary-of-the-Woods College, where she graduated magna cum laude. She is an Indiana Registered Paralegal and an affiliate member of the Indiana Bar and the American Bar Associations.
Pat began her advocacy career as a volunteer for the Task Force on Education for the Handicapped (now InSource), Indiana’s Parent Training and Information Center. In 1990, she opened her advocacy practice and served families throughout Indiana by representing them at IEP meetings, mediation, and due process hearings.
In 2017, Pat closed her advocacy practice and began working on a contract basis as a special education paralegal. Attorneys in Indiana, Texas, and California contracted with her to review documents, spot issues, draft due process complaints, prepare for hearings, and assist at hearings. In January 2019, she became an employee of the Connell Michael Kerr law firm, owned by Erin Connell, Catherine Michael, and Sonja Kerr. Her duties have now expanded to assisting with federal court cases.
the World -- One Child at at Time."
Patricia L. Howey, B.A., IRP
West Point, Indiana 47992-0117