Tuesday, February 24, 2015

State Complaint Procedures - The Other White Meat

I recently became a state complaint investigator for two state education agencies: the South Dakota Department of Education and the New Mexico Public Education Department.  I don't think we talk enough about state complaints here.  Most of the caselaw in this fast-growing field of law deals with due process hearings, but state complaints remain an important procedural safeguard for parents and non-parents, and the only sure way to test systemic issues.  Time for a refresher course on state complaints.  So this post provides some basic information about state complaints.

State Complaint Procedures (NOTE these are different from due process complaints which lead to due process hearings; these are complaints investigated by the state department of education.)

Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required 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).

Within one year of an alleged violation of the Act, any entity (including a parent or an advocacy group) may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the former Regional Resource Centers concerning how the exceptional circumstances exception should be applied. Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page  46602 (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).

Here is the OSEP Topic Brief on State Complaint Procedures. 

See also, the  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) The 64 page Q & A attachment includes a detailed Q & A section on state complaints. You can review the memo and Q & A document here.

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