Wednesday, December 19, 2007

Dispute Resolution Methods- Part II

Last week we described the four dispute resolution mechanisms under IDEA. Beginning this week we will periodically provide posts that describe the major changes in the methods under the 2004 reauthorization and the new federal regulations. Because the resolution session is brand new and because we have discussed it in some detail in previous posts, we will concentrate on the other three dispute resolution methods. This week's post will examine the state complaint procedure. Because this mechanism is not contained in the statute, the discussion will involve the analysis of comments in the federal regulations.






State Complaint Procedures
OSEP maintains the state complaint system even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).
The new regulations give SEAs the ability to award compensatory education or reimbursement as part of the corrective action to remedy after a state complaint investigation. 34 CFR Section 300.151(b). The purpose of this change was to make it clear that states have broad flexibility in making the appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page 46602 (August 14, 2006).
The regulations permit, but do not require a state to have mechanisms or procedures, including state complaint procedures, to seek enforcement of mediation agreements or resolution agreements without going to court. 34 CFR Section 300.537; 71 Fed. Register No. 156 at page 46604 (August 14, 2006). This change in the regulations addresses the expense of going to court to enforce such agreements. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). OSEP agreed with commenters who wanted to retain the regulation allowing the use of state complaints to enforce a hearing officer’s decision. 34 CFR Section 300.152(c)(3); 71 Fed. Register No. 156 at page 46605 (August 14, 2006).
OSEP was also persuaded to restore the former regulation that when a state complaint and a due process complaint are filed simultaneously, portions of the state complaint that are not included in the due process complaint must be resolved within the state complaint timelines. 34 CFR Section 300.512(c)(1); 71 Fed. Register No. 156 at page 46605 (August 14, 2006). States must resolve any state complaint, and they cannot remove from their jurisdiction any subject matter simply because it may also be the basis for a due process complaint. 71 Fed. Register No. 156 at page 46694 (August 14, 2006).
While declining to require that states offer mediation for non-parents who file a state complaint, OSEP nonetheless encouraged states to consider mediation and other forms of alternative dispute resolution in these circumstances. 71 Fed. Register No. 156 at pages 46603-04 (August 14, 2006). Where parties agree to mediation and withdraw the complaint, no further action by the state to resolve the complaint is required. 71 Fed. Register No. 156 at page 46605 (August 14, 2006).
Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46604 (August 14, 2006).The regulations explicitly recognize that mediation as a good reason for an extension of the time limit. 34 CFR Section 300.152(b)(1); 71 Fed. Register No. 156 at page 46604 (August 14, 2006).
Where an issue might be the subject of both a state complaint and a due process complaint, there are different statutes of limitations: one year for state complaints and two years for due process complaints. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46606 (August 14, 2006). OSEP resisted the efforts of commenters to reinstate the previous regulation permitting a continuing violation exception to the state complaint statute of limitations. 71 Fed. Register No. 156 at pages 46605-06 (August 14, 2006).
When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

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