In a recent series of articles I covered resolving disputes under the IDEA through mediation, the resolution process, and due process hearings. Still, another way to resolve disputes under the IDEA is by filing a complaint with the State Education Agency (SEA). The IDEA regulations require that State Education Agency’s have a process to resolve complaints regarding implementing the IDEA. Under this process individuals or organizations may file a complaint for violations of the IDEA with their State Education Agency. Upon receiving a complaint asserting a violation of the IDEA, the State Education Agency may carry out an independent investigation and, if necessary, conduct that investigation at the school or program where the violation may have occurred.
A complaint under the State Education Agency Complaint Process is not the same as the Due Process Complaint Notice that parents are required to file to request a due process hearing. The complaint procedure being discussed here involves an investigation by the State Education Agency rather than a hearing with an independent hearing officer. In the course of an investigation the State Education Agency may review documents and interview individuals, but there is usually not a formal hearing.
If, after its investigation, the State Education Agency determines the IDEA was violated and a child was denied appropriate services, it can require the school district to remedy or correct the violation. In order to correct the violation, the State Education Agency can require the school district to provide compensatory services, monetary reimbursement, and/or provide appropriate services in the future.
Compensatory services are services that are provided to make up for, or compensate the child for, services that legally should have been provided but were not. For example, consider a situation in which a student’s IEP clearly stated that the student was to receive physical therapy three times a week. The physical therapy, however, was never actually provided. To resolve a complaint about the school district’s failure to provide the required physical therapy, the State Education Agency could require the school district to provide additional therapy services beyond those required by the IEP. These additional services would be “compensatory” because they are intended to compensate or make up for the services that were not provided.
Or, perhaps the child’s parents had privately purchased physical therapy services for their child during the time the school district was not providing the physical therapy services as required by the IEP. In that circumstance the State Education Agency might require the school district to reimburse the parents the money they paid for the private physical therapy. Thus, the parents are provided with monetary reimbursement for the costs of the therapy the parents purchased.
Future Compliance and Services
Finally, consider a scenario in which a student’s IEP included access to a piece of assistive technology such as a tape recorder to record lectures, but the tape recorder has not been provided. The State Education Agency might order the school district to provide the tape recorder in the future.
When to Use the State Education Agency Complaint Process
The State Education Agency Complaint Process is best used for cases in which the school district has very clearly not complied with the IDEA. For example:
(1) Services have not been provided as required by an IEP.
(2) The parent has requested that their child be assessed to determine eligibility for special education, and school personnel have not followed through on the assessments.
(3) The school district hasn’t responded to a request for an independent evaluation regarding assistive technology issues and hasn’t scheduled a hearing to resolve the dispute.
(4) The school district hasn’t notified parents of due process procedures.
(5) School personnel have assessed a student without getting the parent’s consent.
If the issue involves very clear violations of the IDEA, then the Complaint Process can be useful in getting the school district to comply with the law. On the other hand, if the issue concerns a disagreement over whether a student needs a particular service and the school district refuses to include that service on the IEP, it is difficult for the State Education Agency to resolve that dispute through the complaint process. Determining a student’s educational needs requires evidence and the testimony of witnesses. That determination is more appropriate for an impartial hearing officer, who will be able to hear that kind of testimony. The State Education Agency’s investigation is mainly limited to reviewing documents and interviewing individuals such as the parents and school staff to determine the facts.
Filing a Complaint with the State Education Agency
A complaint may be filed by an individual or an organization. The complaint must be written and signed and contain the following information:
(1) A statement that the public agency has violated the IDEA. Public agencies include school districts, charter schools, the State Education Agency, and other agencies responsible fro providing education to children with disabilities;
(2) The facts that support the above statement that the public agency violated the IDEA;
(3) The signature and contact information of the person making the complaint; If the complaint is regarding a specific child then the complaint must include:
1. The child’s name and address;
2. The name of the school the child attends;
3. If the child is homeless the available contact information for the child and the name of the school the child attends;
4. A description of the problem including facts describing the problem; and
5. A proposed resolution of the problem to the extent the person filing the complaint knows of a possible resolution of the problem.
Complaints must assert or allege a violation of the IDEA that has occurred within a year of when the complaint is received by the State Education Agency. Moreover, a copy of the complaint must be sent to the school district or other public agency serving the child at the time the complaint is filed with the State Education Agency. Generally, the IDEA requires that complaints to the State Education Agency be investigated and resolved with 60 days. But that time limit can be extended in exceptional circumstances.
Finally, the IDEA provides that the State Education Agency may allow complaints to be the filed first with the local school district and the school district’s decision reviewed by the State Education Agency. In that event, the local school district, rather than the State Education Agency, would conduct the initial investigation. The State Education Agency would then review the school district’s decision regarding the complaint. So, parents and other professionals should check with their State Education Agency to determine how the complaint process works in their state.
Filed under: children with disabilities, Individuals with Disabilities Education Act, Special Education Law | Leave a comment »