State Complaint, in Detail

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Here are the details of the state complaint process.

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Alert! Alert! 
Because NICHCY’s website will only remain online until September 30, 2014, most of its rich content has moved to a new home, the Center for Parent Information and Resources (CPIR), where it can be kept up to date. 

The new address of State Complaint, in Detail at the CPIR is:
http://www.parentcenterhub.org/repository
/details-statecomplaint/

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September 2012

A state complaint is very much what it sounds like-–a letter you’d write to an official state agency to report an issue, conflict, or problem. Any organization of individual may file a state complaint (including those from another state). This makes state complaint an important mechanism for resolving disagreements between schools and others (such as parents or organizations).

There are other mechanisms for resolving disputes, and you can find out about those by returning to the menu “Resolving Disputes Between Parents and the School System.” Here, however, the process of state complaint will be thoroughly explained without again mentioning that other options exist by which individuals and organizations might register their disagreement with the school system and have it addressed.

Quick-Jump Links

To read IDEA’s exact words, visit IDEA’s regulations on state complaint.

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Who may file a state complaint?

A state complaint may be filed by an organization or individual, including an organization or individual from another state.

This is an important difference between state complaints and mediation and due process complaints. Those two dispute resolution options—due process complaints and mediation—require either the child’s parent or the public agency (e.g., the school system) to initiate the process. (Public agency is defined at §300.33).

The person who files a State complaint is referred to as the “complainant.” This term is used throughout this article, so remember it!

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Where does IDEA talk about state complaint?

The 2004 Amendments to the IDEA (by this, we mean the statute itself, as passed by Congress) and prior versions of that statute do not include State complaint procedures. Rather, it is IDEA’s final Part B regulations and their predecessors that have required each state to adopt written state complaint procedures consistent with IDEA’s provisions at §§300.151 through 300.153. These provisions will be excerpted at relevant points in this discussion.

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What written procedures is a state required to adopt?

Among other things, the written procedures that a state adopts must:

  • provide a way for individuals and organizations to file a state complaint with the State Education Agency (SEA); and
  • if the state so chooses, also provide a way for a complaint to be filed with the school system itself and have the school system’s decision on the complaint be reviewed by the SEA. [§300.151(a)]

These procedures must be widely disseminated to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities.

Because the SEA has a general supervisory obligation and authority for special education systems in the state, its procedures for resolving state complaints must include remedies when a failure to provide appropriate services is found. This includes:

  • corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and
  • how appropriate services for all children with disabilities will be provided in the future.

Thus, as the Department of Education has observed, state complaint procedures are directly under the control of the SEA, and provide parents and the school district “with mechanisms that allow them to resolve differences without having to resort to a more costly and cumbersome due process complaint, which by its nature, is litigious.” (71 Fed. Reg. 46606)

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What information must a state complaint include?

First, a state complaint must be signed and written. It must also include the content described at §300.153(b) (see IDEA’s regulations), which can be summarized as follows:

  • a statement that the school system has violated a requirement of Part B of IDEA;
  • the facts on which this statement is based;
  • the signature and contact information for the complainant.

If the alleged violation is with respect to a specific child, the complaint must also include:

  • the name and address of the child;
  • the name of the school the child is attending;
  • a description of the “nature of the problem of the child,” including facts related to the problem; and
  • a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

Each SEA must develop a model form to assist parents and other parties in filing a state complaint. However, the SEA or local educational agency (LEA) may not require the use of its model forms. The provision at §300.509(b) allows the complainant to use another form or document so long as the form or document includes the content required for filing a state complaint at §300.153(b).

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And the complaint is filed with the SEA?

Yes. But it’s also important to note that the complainant must also send a copy to the LEA or public agency (e.g., school system) serving the child at the same time the state complaint is filed with the SEA. This is a new provision, found at §300.153(d).

Why was this new provision added? As the 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 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)

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What happens if the complainant doesn’t include all required information?

This question arises because IDEA’s due process procedures specify what must occur if the SEA receives a due process complaint that is insufficient [see §300.508(d), “Sufficiency of complaint”]. Unlike due process, however, the Part B regulations governing the state complaint process do not even mention “sufficiency of complaint.”

The Department of Education (2009) addressed this issue directly in its Questions and Answers on Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities, saying:

[W]hen an SEA receives a complaint that is not signed or does not include contact information, the SEA may choose to dismiss the complaint. In general, an SEA should adopt proper notice procedures for such situations. For example, an SEA could provide notice indicating that the complaint will be dismissed for not meeting the content requirements or that the complaint will not be investigated and timelines not commence until the missing content is provided. (p. 2)

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What is the SEA’s obligation when it receives a state complaint?

The SEA 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). Here’s a rundown of the basic steps involved in resolving a State complaint.

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)]

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Is there a time limit for filing a state complaint?

Yes, indeed, there is–and it’s different now than in earlier reauthorizations of the law and their regulations. Now:

The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received…[§300.153(c)]

Previously, complaints could be be filed for alleged violations that occurred up to three years prior to the date the complaint was received. The “one-year timeline is reasonable,” the Department explains, “will assist in smooth implementation of the State complaint procedures… [and will] help ensure that problems are raised and addressed promptly” (71 Fed. Reg. 46606).

The Department also points out that states may choose to accept and resolve complaints outside the one-year timeline, just as they are free to add additional protections in other areas that are not inconsistent with IDEA’s requirements.

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How soon must the SEA resolve a State complaint?

As mentioned earlier, the SEA must resolve the state complaint within 60 days after the complaint is filed. The specific activities associated with resolving the complaint must take place within that time limit. This includes:

  • conducting an independent on-site investigation, if the SEA determines that an investigation is necessary;
  • giving the complainant the opportunity to submit additional information, either orally or in writing;
  • providing the public agency with the opportunity to respond to the complaint;
  • having the SEA or the public agency responsible for resolving the complaint review all relevant information and make an independent determination; and
  • issuing a final decision on the allegations in the state complaint.

The SEA’s complaint procedures must permit that 60-day timeline to be extended, only if exceptional circumstances exist or if the parent and the public agency agree to extend the time to engage in mediation (or other alternative means of dispute resolution, if available).

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)].

This means that the fact that the parties agree to use mediation is not sufficient by itself to warrant an extension of the 60-day timeline. The complainant and the public agency must also agree to extend the timeline as a result of the decision to use mediation.

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Must a State complaint be investigated if it’s resolved through mediation?

If the State complaint procedures allege violations specific to a child and those violations were addressed in a settlement agreement resulting from mediation, the SEA may determine that the settlement agreement has resolved the violation and inform the complainant. If the state complaint alleges violations that may be systemic and involve many children, the state must resolve those allegations through its state complaint resolution process.

A bit of an explanation: 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).

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What happens if a state complaint and a due process complaint are filed to resolve the same issue?

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).

Oh, and one more thing: Under §300.152(c)(2), if an issue included in a state complaint has previously been decided in a due process hearing that involved the same parties, the due process decision is binding on that issue, and the SEA must inform the complainant to that effect.

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Can the SEA’s decision be appealed?

IDEA neither prohibits nor requires that a state’s state complaint procedures include a way to appeal the SEA’s decision on a state complaint. The Department observes that “States are in the best position to determine what, if any, appeals process is necessary to meet each State’s needs, consistent with State law” (71 Fed. Reg. 46607).

Regardless of the state’s policies regarding appeal of the SEA’s final decision, the Department makes sure to point out (Id.), after that decision is issued, a party who disagrees with it (and has the right to request a due process hearing) may initiate a due process hearing, given the following two conditions:

  • that the subject of the State complaint involves an issue about which a due process hearing can be filed, and
  • the two-year statute of limitations for due process hearings (or other time limit imposed by State law) has not expired.

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Final Words: What’s Changed?

We’d like to take one last moment to reiterate and summarize the changes IDEA 2004 has brought to the procedures it requires states to adopt for filing and resolving state complaints. These include:

  • a new requirement to forward a copy of the State complaint to the public agency serving the child;
  • new content requirements for complaints; and
  • a revised time limit for filing complaints.

These changes are all noteworthy and, together, will hopefully provide public agencies, parents, and others with streamlined and effective state complaint processes for resolving disputes.

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References

Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, 71 Fed. Reg. 46540 (August 14, 2006) (codified at 34 C.F.R. pt.300). Available online at: http://idea.ed.gov

U.S. Department of Education. (2009, June). Questions and answers on procedural safeguards and due process procedures for parents and children with disabilities (rev.). Washington, DC: Author. Available online at: http://idea.ed.gov/explore/view/p/,root,dynamic,QaCorner,6,

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The discussion above is adapted primarily from a module within the Building the Legacy training curriculum on IDEA developed by NICHCY–specifically, Module 18, Options for Dispute Resolution.

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NOTICE: NICHCY is going away, but its resources are not. Find hundreds of legacy NICHCY publications, as well as our training curriculum on IDEA 2004, in the Center for Parent Information and Resources' Library at http://www.parentcenterhub.org/resources. This website will remain available until September 30, 2014. After that date, web visitors will be automatically redirected to http://www.parentcenterhub.org.