State Complaint Basics
Six Considerations and Concerns
Prior to Filing a State Administrative Complaint
Kathleen B. Boundy, Co-Director
Center for Law and Education
While the state administrative complaint procedure,outlined in the current IDEA regulations at 34 CFR §§ 300.151-300.153, holds much promise for individuals and organizations seeking an informal and inexpensive means to hold schools accountable to abide by the provisions of IDEA, use of the state complaint process also raises some issues and concerns that are at least worthy of consideration by potential complainants. These include:
1. State Educational Agencies (SEAs) have substantial flexibility to determine whether or not to investigate a complaint filed through the state complaint procedure;
2. state administrative complaints must generally be filed within one year of the specific incident at issue;
3. SEAs are not required by IDEA to publish their findings and rulings issued with respect to state administrative complaints, leaving potential complainants with limited guidance about the nature and scope of complaints and what to expect;
4. no generally recognized federal right to appeal a state complaint ruling by the SEA, though some states authorize appeals to state courts through their state Administrative Procedures Act;
5. attorney’s fees are not generally available to successful complainants; and
6. concerns about fairness when an SEA and/or other public agency under its jurisdiction is the party being complained of.
1. State Administrative Discretion Whether to Investigate Complaints Is Substantial
The SEA has broad discretionary authority in investigating state administrative complaints and in shaping the scope of relief and corrective actions. After an individual or an organization files a complaint that meets the regulatory requirements, the SEA must within a timeframe of sixty (60) days “carry out an independent on-site investigation,” but only “if the SEA determines that an [on-site] investigation is necessary.” Under the regulatory provisions the SEA is required to give the complainant an “opportunity to submit additional information…about the allegations in the complaint” and, provide the “public agency with the opportunity to respond…including, at its discretion,” to offer “a proposal to resolve the complaint”, and the parties a chance “to voluntarily engage in mediation...” Next, the SEA is required to “[r]eview all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act.” The SEA must then provide a decision in writing that “addresses each allegation in the complaint and contains (i) [f]indings of fact and conclusions; and (ii) [t]he reasons for the SEA's final decision.” Despite these prescriptive steps, the regulations do not contain any criteria concerning the nature and scope of the investigation, and specifically whether and when “an on-site investigation is necessary” instead of a paper review.
Because the IDEA regulations provide minimal guidance with respect to the state complaint procedures, the SEA has broad discretion to determine what steps it will take to resolve the complaint. A 2001 letter from the Office of Special Education Programs (OSEP) affirmed that “an SEA is required to resolve any [emphasis added] complaint, but not necessarily investigate, [sic] that meets the requirements of [§300.152].” In responding to a dissatisfied New York complainant who had sought to bring systemic claims based on statistical data alleging that students were being denied FAPE in the least restrictive environment, OSEP acknowledged that it “may be that the SEA’s findings of fact and conclusions do not necessarily satisfy the complainant.” In a subsequent letter OSEP indicated that “states are responsible for resolving… complaints containing allegations of a statewide, systemic nature, regardless of whether the complaint alleges that the State itself or one of the public agencies in the State has violated a requirement of Part B of the Act or the Part B regulations.” OSEP pointed out that “there is no requirement that a State contract with an independent entity to conduct an investigation when a State deems it necessary to conduct an investigation, even if the State complaint involves its own alleged noncompliance with a requirement of Part B…States have discretion in the manner in which they conduct complaint resolutions.”
If an SEA determines that it is not necessary to conduct an on-site investigation of the complaint, the complainant can choose to file an administrative due process complaint provided that the matter in dispute relates to identification, evaluation, programming, or placement. Both types of complaints may proceed simultaneously, but to the extent the due process complaint raises the same issue, the state administrative complaint defers to the due process hearing’s reaching a final ruling that unlike the decision reached through the state administrative procedure (with limited exceptions), is subject to appeal under 20 U.S.C. §1415(i)(2); 34 C.F.R.§300.516.
2. State Administrative Complaints and the One Year Filing Limitation
Another significant consideration, and potential barrier to individuals contemplating using the state administrative complaints procedure, is that any complaint alleging a violation of IDEA must be filed within one year of the specific incident, even if a significant violation from outside of this time period surfaces through the investigation. Under 34 CFR §300.153(c), the complaint must “allege a violation that occurred not more than one year prior to the date that the complaint is received…” The state administrative complaint procedure is meant to provide complainants, including those individuals with limited income, with a tool to challenge IDEA violations by schools or school districts or other public agencies without necessarily having to be represented by an attorney or advocate through the more demanding administrative due process procedures and hearing. This one-year statute of limitations for filing a state administrative complaint may hamper its potential to serve as a meaningful tool, especially for parents with limited access to attorneys, advocates and other parent support resources. However, as OSEP suggested in its comments to the Final IDEA Regulations: "States may choose to accept and resolve complaints regarding alleged violations that occurred outside the one-year timeline, just as they are free to add additional protections in other areas that are not inconsistent with the requirements of the Act and its implementing regulations.”71 Fed. Reg. 46,606, (August 14, 2006).
Individuals seeking relief through an administrative due process hearing have a two-year statute of limitations. Unlike the administrative due process which is typically heavily invested in fact-finding, the state complaint procedure provides no opportunity for a fact finding hearing, discovery, or formal exchange of viewpoints, but requires investigation, including on-site, if determined necessary, and review of documents by the state compliance officer. The state complaint procedure is designed to be limited, timely, economical, and available to a more diverse group of aggrieved parties.
3. Publication of State Administrative Decisions Is Not Required
Unlike the requirement that States make available written final decisions issued by administrative due process hearing officers under 34 CFR 300.513, neither the statute nor the regulations implementing the state complaint procedure require that SEAs publish state administrative complaint decisions. States may, however, be required to do so under their own state laws implementing special education or consistent with their administrative procedure act (APA). At this time, eighteen (18) states, as a matter of state law or policy, publish state administrative complaint decisions. Lack of access to decisions, including state findings/reports, that could be authorized by state mandate, makes it difficult for parents, their advocates, and organizational complainants to assess whether and how to use the state complaint procedures effectively. Denial of access to such information and documentation of findings of non-compliance prevents potential complainants from considering the nature, scope, and parties to complaints that have been filed, the extent to which the complaints have been investigated, outcomes attained, and the viability and effectiveness of such procedures in attaining individual and broader systemic relief requested.
Furthermore, although laypersons must be provided limited guidance, including a model form identifying information that must be included in a complaint alleging non-compliance by a school, district or other public agency,the inability to examine the state rulings creates an unnecessary barrier for potential complainants more fully utilizing the state administrative complaint procedure system.
4. Barring Separate State Authorization There Is No Expressed Federal Right to Appeal an Unfavorable State Administrative Complaint Ruling
IDEA expressly authorizes a judicial appeal from an unfavorable decision made in a due process hearing. There is no such explicit authorization of the right to appeal from an unfavorable administrative complaint filed through the state complaint procedure. Instead, the IDEA regulatory provisions governing the state administrative complaint process are silent and do not say whether or not a person can appeal a state administrative judgment to a court. As explained by the U.S. Department of Education: “We have chosen to be silent in the regulations about whether a State complaint decision may be appealed because we believe 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.” As a result of the regulations’ silence, the majority of courts have held that an aggrieved complainant cannot bring a judicial appeal after receiving an unfavorable state administrative decision. Instead, the complainant has the option to go through the due process hearing. Only one federal circuit has found a right to appeal a state administrative decision to a court. In Christopher S. ex rel. Rita S. v. Stanislaus County Office of Education, the U.S. Court of Appeals for the Ninth Circuit allowed judicial appeal of a state administrative complaint when there was no due process hearing. The court’s analysis, however, was focused on the issue of exhaustion, and was heavily influenced by the facts of the case, which involved a blanket policy that applied to an entire class of students, rather than an individual complaint about a specific student’s IEP. Thus, the right to appeal a state administrative complaint decision is not guaranteed, and that should be taken into consideration when deciding whether to file a state administrative complaint or to initiate a due process proceeding.
Alternatively, a few states have adopted an appeals mechanism in their State Administrative Procedures Act (APA) that authorizes dissatisfied complainants to seek judicial review of state administrative complaint decisions.
5. Attorney’s Fees Are Not Generally Available to Successful Complainants
Before pursuing a complaint through the state administrative complaint procedure, one should consider that with the limited exception of courts within the Ninth Circuit and based on particular facts, most circuit courts have not awarded or have yet to determine whether to award reasonable attorney’s fees to a prevailing complainant who is the parent of a child with a disability in “any action or proceeding under [section 1415].” Multiple courts have determined that “a state Complaint Review Procedure (CRP) pursuant to the IDEA [is] not considered to be an ‘action or proceeding’ within the meaning of IDEA's attorney fee provision.”
6. Concerns about Fairness When an SEA and/or Other Public Agency under Its Jurisdiction Is the Party Being Complained Of
If an individual or an organization seeks to complain about issues and concerns regarding non-compliance with key requirements of IDEA by the SEA, whether as a provider of direct services to certain student with disabilities, in its role as having oversight of the delivery of education to other public agencies, e.g., Departments of Corrections or Youth Services, or in its role as SEA with ultimate responsibility over all LEAs and public agencies for ensuring the rights all students with disabilities under IDEA, it is reasonable to have some second thoughts about the nature and scope of the investigation, the completeness and review of the allegations, evidence, and findings, and possible correctional actions. OSEP’s Answer to Question B-12 on IDEA Part B Dispute Resolution Procedures indicates that an SEA may either appoint its own personnel or contract with an outside party to resolve the complaint. In addition, the SEA “must ensure that it or an outside party, whichever resolves the complaint, considers all available remedies in the case of a denial of appropriate services consistent with 34 C.F.R. §300.151(b). Regardless of whether the complaint is resolved by the SEA or by an outside party that the SEA designates to resolve the complaint, the SEA must comply with all corrective actions, including remedies, set out in the final decision. 71 FR 46602 (August 14, 2006).” However, in Letter to Zimring (2008), OSEP underscored that a State is not required to contract with an independent entity to conduct an investigation when a State deems it necessary to conduct an investigation, even if the State complaint involves the State’s own alleged noncompliance with a requirement of Part B. So long as states adhere to the state complaint procedures set out in the Part B regulation, States have discretion in the manner in which they conduct complaint resolutions.
 The state administrative complaint procedures are sometimes referred to as the Complaint Resolution Procedures (CRP). These procedures now found at 34 C.F.R. §§300.151-300.153, and previously found at 34 C.F.R. §§300.660-300.662, were initially set forth in 45 C.F.R. § 121a.602 until April 3, 1980, when the complaint procedure was revoked and the complaint procedure of the Education Department General Administrative Regulations (“EDGAR”) was substituted. The EDGAR procedures were first set forth in 45 C.F.R. § 100b.780 in 1980 and in 1983 were codified at 34 C.F.R. §§76.780-76.782. Amendments to EDGAR on July 8, 1992 removed the state complaint procedures from EDGAR and added them to 34 C.F.R. Part 300, the implementing regulations under IDEA. When the final IDEA implementing regulations were published on Sept. 29, 1992, the state complaint procedures were renumbered as 34 C.F.R. §§ 300.660-300.662 and located at 34 C.F.R. § 300, Subpart F, “State Administrative State Complaint Procedures,” rather than Subpart E, “Procedural Safeguards Due Process Procedures for Parents and Children,” where the implementing regulations for § 1415 due process procedures are found. 21 IDELR 85, OSEP Memorandum 94-16 (1994).
 34 C.F.R. §300.152(a)(1).
 34 C.F.R. § 300.152(a)(3)(i).
 34 C.F.R. § 300.152(a)(3)(ii).
 34 C.F.R. § 300.152(a)(4).
 34 C.F.R. § 300.152(a)(5)(i),(ii).
 Letter to Nann, 36 IDELR 212 (OSEP 2001).
 Letter to Zimring, 109 LRP 15076 (OSEP 2008).
 See 20 U.S.C. § 1415(f),(k); 34 C.F.R. §§ 300.507 through 300.513; Questions and Answers on IDEA Part B Dispute Resolution Procedures, Revised July 2013, Answers to Questions B-26, B-27, pp. 21-22, 61 IDELR 232.
 20 U.S.C. § 1415 (b)(6)(A); 34 C.F.R. §300.507(a); Letter to Chief School Officers, 34 IDELR 264 (OSEP 2000)
 34 C.F.R. § 300.152(c); Questions and Answers on IDEA Part B Dispute Resolution Procedures, Revised July 2013, Answers to Questions B-26, pp. 21-22, 61 IDELR 232.
 See discussion below concerning the limited right to appeal a state administrative decision to state or federal court.
 See also Questions and Answers on IDEA Part B Dispute Resolution Procedures, Revised July 2013, Answers to Questions B-19, pp. 19-20, 61 IDELR 232.
 20 U.S.C. §1415(b)(6)(B).
 34 C.F.R. §§ 300.151-300.153.
 See, e.g., Mich. Comp. Laws § 600.631.
 34 C.F.R. § 300.509; Questions and Answers on IDEA Part B Dispute Resolution Procedures, Revised July 2013, Answer to Question B-4, p. 17.
 U.S.C § 1415(i)(2)(A).
 Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 FR 46,540-01.[check cite 46,607 (August 14, 2006)]
 See also Questions and Answers on IDEA Part B Dispute Resolution Procedures, Revised July 2013, Answers to Questions B-32, p. 23, 61 IDELR 232.
 See, e.g., Weber v. Cranston School Committee, 212 F.3d 41, 53 (1st Cir. 2000) (finding no right to judicial appeal because plaintiff did not initiate a due process hearing, despite the fact that plaintiff filed 3 state administrative complaints and participated in mediation); Virginia Office of Prot. & Advocacy v. Virginia, Dep't of Educ., 262 F. Supp. 2d 648, 659 (E.D. Va. 2003).
 384 F.3d 1205 (9th Cir. 2004).
 See Id. at 1211. The Christopher court and many others allow exemptions from IDEA’s exhaustion requirement in certain circumstances, meaning that a complaint can be filed with a court without going through a due process hearing. These circumstances include when “(1) it would be futile to use the due process procedures ...; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g. the hearing officer lacks the authority to grant the relief sought).” Christopher, 384F.3d at1094.
 See T.S. v. Utica Cmty. Sch., 11-CV-13092, 2013 WL 5954425 (E.D. Mich. Nov. 7, 2013) (“If Plaintiffs are dissatisfied with the results of the state resolution procedure outlined above, they…can seek judicial review under Michigan's Revised Judicature Act, Mich. Comp. Laws § 600.631, which allows a party aggrieved by a final agency decision to file an action in state circuit court”).
 The Court of Appeals for the Ninth Circuit held that a state CRP constitutes an IDEA “action or proceeding” in Lucht v. Molalla River Sch. District, 225 F.3d 1023 (9th Cir. 2000); But see Vultaggio ex rel. Vultaggio v. Bd . of Educ., 343 F3d 598, 602 (2nd Cir. 2003)(disagreeing with Lucht); see JohnsonVultaggio ex rel. Vultaggio v. Bd. of Educ., 343 F.3d 598 (2d Cir. 2003); See Johnson ex rel Johnson v. Fridley Pub. Sch., CIV. 01-1219(PAM/JGL, 2002 WL 334403 (D. Minn. Feb. 21, 2002)
 Letter to Zimring, supra note 10.