When the district appears to have violated a part of special education law or procedure, a parent, individual, public district or organization can file a complaint with the State Department of Education.
As an advocate in California, I have written many state complaints, most of them successful in having the district found out of compliance with state and federal law. In this article, I explain the most important points regarding the purpose, benefit, and process of a state compliance complaint.
Federal Requirements
The requirements for State complaint procedures are found in the regulations at 34 CFR §300.151-300.153.
Each State is required to have specific complaint procedures even though the IDEA statute does not contain those procedures. Thus, it is important that you research your state regulations to understand the specifics regarding your state’s complaint procedures.
Under 34 CFR §§300.151-300.153, the Department provided the following explanation when the final Part B regulations were published:
“Although Congress did not specifically detail the State complaint process in the Act, we believe that the State complaint process is fully supported by the Act and necessary for the proper implementation of the Act and these regulations. We believe a strong State complaint system provides parents and other individuals an opportunity to resolve disputes early without having to file due process complaint and without having to go to a due process hearing.” 71 FR 466600 (August 14, 20006).
This means that the district is obligated to provide parents the opportunity to resolve disputes through a state complaint and avoid the need to file for due process. Accordingly, through its Part B State complaint procedures, “each State must offer parents a powerful tool to address noncompliance with Part B of the IDEA and its implementing regulations in a manner that both supports and protects the interests of children with disabilities and their parents and facilitates ongoing compliance by the State and its public agencies with the IDEA and its implementing regulations.” 71 FR 46601 (August 14, 2006).
The State complaint procedures are referred to in the following three sections of the IDEA: section 611(e)(2)(B)(i), requiring States to expend a portion of Part B funds that they can use for State-level activities for complaint investigation; section 612(a)(14)(E), which provides that a parent is not prevented from filing a State complaint under part 300 with the SEA about staff qualifications; and section 615(f)(3)(F), clarifying that nothing in the Act’s due process provisions should be construed to affect the right of a parent to file a complaint with the SEA.
Mediation or ADR
School districts may develop a mediation or other “alternative dispute resolution” (ADR) procedures in order to resolve complaints informally before conducting an official investigation in response to a state complaint. This mediation or other informal process cannot extend the 60-day timeline for resolving complaints unless you agree in writing to the extension. However, mediation or ADR cannot be a mandatory part of the process. You may waive this step.
An agreement reached through mediation is legally binding. Such an agreement is enforceable in an appropriate state or federal court and is not subject to the SEA’s approval. This is one reason why the Department of Education encourages parties to resolve complaints “at the local level without the need for the SEA to intervene” (71 Fed. Reg. 46605).
You can learn more about the ADR and Mediation in the next “How to win at the IEP table” Episode #7.
A state compliance complaint, mediation or ADR are ways to resolve a dispute under IDEA. But parents can also file a due process complaint, however, if you file a state complaint at the same time, the state must put aside any part of your complaint that’s being addressed in the due process complaint or hearing.
According to IDEA’s regulations, the SEA must set aside any part of the state complaint that is being addressed in the due process hearing until the conclusion of the hearing. But any issue in the state complaint that is not a part of the due process hearing action must be resolved using the time limit and state complaint procedures described above. These requirements are stated at §300.152(c)(1).
Most special education attorneys will tell you not to file a state complaint if you plan on filing for due process. This is because if you file a state complaint and the district is not found out of compliance, you weaken the due process case. As an advocate, I have been successful in resolving procedural violations through a state complaint and avoiding the need for due process. This decision is made on a case-by-case basis and is contingent upon the alleged violations. If the dispute includes failure to provide FAPE, a due process hearing would be required as a state complaint would not address this substantive issue.
Although people often confuse compliance complaints and due process, the main difference is:
- Substantive issues: When there is a disagreement about what should go into a student’s IEP, or where to implement the IEP, then due process is appropriate; but,
- Procedural issues: When the district has not followed special education laws or procedures or has not implemented what is already specifically written into a student’s IEP, then a compliance complaint is appropriate.
In other words, due process procedures involve a disagreement over what a student’s program should include as relates to a Free Appropriate Public Education, or where to implement the IEP, while a compliance complaint involves a failure by the district to follow the rules or to do what has already been agreed to in writing in the IEP.
How much time do I have to file and what information will help me write a state complaint?
You must file your complaint no later than one year after you claim the violation of special education law occurred. [34 C.F.R. Sec. 300.153(c).
You file your complaint with your state’s Department of Education. You must also send a copy to your school district. Each state handles the process in its own way. You’ll need to check your state’s rules. The nonprofit Advocacy Institute has links to each state’s information page. The institute also has a library of actual complaints and decisions.
If the investigation indicates a failure by the district to comply with the law, the state may require “corrective action” or conduct technical assistance activities. [34 C.F.R. Sec. 300.152(b)(2).]
If the noncompliance is not corrected, the state shall take further action. Actions may include a court proceeding for an order requiring compliance, or a proceeding to recover or stop state funding.
The following states make state complaint decisions publicly available online: Colorado, Delaware (withholds district name), District of Columbia, Indiana (not current), Kansas (withholds district name), Maine, Maryland, Minnesota, Montana, Nevada, New Mexico, Ohio, Oregon, South Dakota (summaries only), Tennessee, Washington (not current), Wisconsin (withholds district name), Wyoming. Of these states, it is known that Ohio and Wisconsin are exemplary in the manner of presentation (i.e., databases that allow users to search reports by issue, date, district). Oregon also provides a user-friendly listing of complaints. Other states are encouraged to present state complaint decisions online in a user-friendly and timely manner.
In states that do not post complaint investigation reports, use your state’s freedom of information law to submit requests to the state Department of Education. More information on FOIA, including sample letters, is available here.
If the state finds the district out of compliance in that a district has not provided appropriate services, it must address the failure through corrective actions that address the needs of the affected student, such as compensatory services or monetary reimbursement. The federal regulations also require every state in its corrective action plan to “address…appropriate future provision of services for all children with disabilities.” [34 C.F.R. §300.151(b).]
How long does the state have to investigate and provide a decision?
Your state department of education also referred to as the SEA (State Education Agency), must ensure that state complaints are resolved within 60 days from the date the complaint is filed (unless an extension of the timeline is permitted).
If the complaint is filed by an individual or organization other than the parent, the timeline may also be extended through agreement between the public agency and the other individual or organization filing a complaint if mediation (or other alternative means of dispute resolution) is available to the individual or organization under State procedures [§300.152(b)(1)(ii)].
- The SEA must carry out an independent on-site investigation, if the SEA determines that an investigation is necessary.
- The SEA must give the complainant the opportunity to submit additional information about the complaint, either orally or in writing.
- The SEA must provide the public agency with the opportunity to respond to the state complaint.
- The SEA must review all relevant information, make an independent determination on the complaint, and issue a written decision to the complainant.
- The SEA must have procedures to ensure effective implementation of the SEA’s final decision. [§300.152(a) and (b)(2)]
What violations are included in a state complaint?
When writing a state complaint, you should outline the reasons for your request in your complaint letter by listing your alleged violations. A state investigator will be assigned to investigate the allegations listed in your complaint. The state investigator will contact you to review the allegations and give you an opportunity to submit additional information either orally or in writing. The SEA will also contact the district to give them the opportunity to submit evidence to prove they are in compliance with state and federal law. The state investigator must provide a ruling in a written determination regarding whether the district was “out of compliance.” If a district is found “out of compliance,” the district should be ordered to come back into compliance and corrective actions to ensure effective implementation of the state’s final decision.
In addition, the state may order the district to submit a “corrective action plan” which is a document describing the steps the district has taken, or will take, to ensure that the problem does not occur again, as well as the timelines for taking those steps.
Examples of state complaint violations include:
- failure to implement an individualized education program (IEP);
- failure to assess or refer a student to special education;
- failure to follow timelines for assessment and referral;
- failure to inform parents of an IEP meeting; or
- failure to implement a due process hearing decision or mediation agreement.
Top 10 Reasons to File a State Complaint
- Inappropriate Services or Support: Schools fail to provide the services or support specified in the IEP.
- Lack of Appropriate Parent Participation/Predetermination: Parents are not included in decision-making processes or decisions are made without their input.
- Denial of Need for Special Education Based on Good Grades/Passing: Schools refuse to provide special education services because the child has good grades or is passing.
- Lack of Comprehensive Evaluation for Special Education: Schools do not conduct thorough evaluations to determine the child’s needs for special education.
- IEP Not Implemented as Written: Schools not following the IEP as it is written, which can impede the child’s progress, such as not providing the specified assistive technology.
- Failure to Provide Required Accommodations: Schools not providing necessary accommodations, such as extended time on tests or specific classroom aids.
- Inadequate Progress Monitoring: Lack of regular and accurate monitoring of the child’s progress toward their IEP goals.
- Lack of Related Services: Failure to provide necessary related services, such as speech therapy, occupational therapy, or counseling, as outlined in the IEP.
- Improper Discipline: Disciplinary actions taken against the child that do not consider their disability or IEP requirements.
- Informal Removals: Excluding the child from their regular educational setting without proper documentation or following formal procedures.
In closing, as the U.S. Department of Education explains: “The purpose… is to ensure that the public agency involved has knowledge of the issues and an opportunity to resolve them directly with the complaining party at the earliest possible time. The sooner the LEA (Local Education Agency) knows that a complaint is filed and the nature of the issue(s), the quicker the LEA can work directly with the complainant to resolve the complaint.” (71 Fed. Reg. 46606)
As an advocate of 25 years, it has come to my attention that many states across the nation are negligent in adhering to the spirit of the law in terms of state complaint procedures.
Because Congress did not specifically detail the State complaint process, there are many states that take advantage of this loophole by failing to address noncompliance with Part B of the IDEA and its implementing regulations in a manner that both supports and protects the interests of children with disabilities and their parents. These states fall short in facilitating ongoing compliance with the IDEA and its implementing regulations. As such, there is a wide variance between states in holding LEAs accountable to adhere to procedural violations.
According to “Outcomes Trends in State Complaint Procedures Decisions under IDEA”, Perry A. Zirkel, Alyssa I. Fairbanks, & Natalie E. Jones, ”The reasons for the wide variance in the differences between states may include, for example, (a) differences in interpreting and applying the IDEA, including legal training for the complaint investigators but also the prevailing conservative-liberal values among the cultures of the states; (b) the differences among the state statutes and regulations in the extent of requirements added to those of the IDEA, (c) the extent of the perceived and actual IDEA compliance among the school districts within each jurisdiction; (d) variance in not only the availability of alternative dispute mechanisms but also the activity of parent training or advocacy centers in assisting parents with filing complaints; and (f) the extent that parents and other potential complainants are aware of and amenable to the complaint mechanism under the IDEA.”
Overall, I find that writing a state compliance complaint is a powerful tool for parents and advocates in California. That being said, there will always be complaints that are successful in finding the district out of compliance and there will be complaints that rule in favor of the school district. I have heard from other parents across the nation reporting that a state complaint is ineffective because the state is biased in making its decisions in favor of the LEA. We know the system is stacked against parents and there is much work to be done, however, utilizing a state complaint and/or other alternative dispute resolution methods are recommended by IDEA and are available to parents and advocates in the development of an appropriate IEP.
Cheering you on always!
Valerie Aprahamian
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Valerie Aprahamian is a special education advocate, IEP strategist, and speaker. She speaks on behalf of parents to protect the rights of neurodiverse children to receive the supports they need in public school.
