State Complaint Basics
Ten Tips About Using the State Complaint Process
Sonja D. Kerr, Public Interest Law Center of Philadelphia
1. Acknowledge that a state complaint is one means of starting advocacy on an issue.
The filing of a state complaint is only a starting point for advocacy in most cases. The primary reason for filing a state complaint is so that in further advocacy, your state agency cannot claim it was unaware of the problem. This is important because one of the four prongs of a free appropriate public education is special education and related services that meet the standards of the state educational agency. 20 U.S.C. §1401(9)(B). Equally critical to remember is that each state has final supervisory responsibility for the provision of special education and related services for children in your state. 20 U.S.C. §1401(23); 20 U.S.C. §1412.
2. Thoroughly research the state’s position on the issue prior to filing.
All states must have a state special education plan that is routinely submitted to the federal department of education. Review this plan, as it will alert you to the priorities determined by your state. In addition, most states have special education manuals or guidance memos. Read and use these as part of determining how to write your complaint. This includes training materials provided by state personnel. Research any prior state complaint opinions on the topic. See sample complaints.
3. Thoroughly research to determine if the Office of Special Education Program (OSEP)’s or the Office for Civil Rights has issued an opinion letter on the issue before filing your state complaint.
Both the United States Department of Education’s Office of Special Education Programs (OSEP) and the Office for Civil Rights (OCR) can issue letters to the field. These have important guidance impact to state educational agencies. See, for example, Dear Colleague Letter, 113 LRP 17803 (OCR, April 24, 2013), (explaining retaliation claims in the context of IDEA).
It is important to research to see if OSEP has ever opined on an issue. Such opinions may guide the state. In addition, there may be times when you want to write OSEP for an opinion in addition to or instead of filing a state complaint. See, for example, Letter to Hugo, November 2013 (State SLD identification criteria) and Letter to Kerr, April 2003 (when must the IEP document actually be written).
4. Anticipate a negative response from the state and plan next steps before filing.
Do not assume that the state will find favorably. In fact, presume the opposite and construct an advocacy plan based upon an unfavorable finding before you file. Will there be a need for litigation? Legislation? A letter to OSEP or OCR?
5. Concentrate and focus on the most awful facts you can muster.
It is the facts of a situation that will most frequently convince a state investigator, not the law. Thus, it is critical to have in your complaint the most accurate, awful facts you can accurately report. See, e.g. Pa Nurses Complaint.
6. Remember that you can file a complaint with the state about a state practice, including the complaint process.
The state is itself subject to the IDEA because it is a public agency. 34 C.F.R. §300.153(b)(1); and see, 20 U.S.C. §1412. Therefore, a complaint can be filed with the state about a state practice. 34 C.F.R. §300.152(a)(4) requires the state to make an “independent determination.” When filing a complaint against a state about a complaint process, request an independent investigator. Sometimes you will get one. If you don’t, and the complaint is not favorable, you have another basis for additional advocacy.
7. Use the complaint process judiciously.
Reserve the complaint process for situations that have the following characteristics:
1) there is a potential interest by the state because there is a state policy or practice at issue;
2) the parent prefers the complaint process to a due process hearing or in addition to or before a due process hearing;
3) the facts are reasonably undisputed based on documentary evidence (i.e. IEPs, emails). See, e.g. Student v. ASD, 08-19, 109 LRP 4591 (Alaska, 11/30/08) (due process hearing after state complaint); P.V. v. School District of Philadelphia (due process hearing after partially successful state complaint), due process hearing found at 57 IDELR 86 (Pa SEA April 15, 2011), federal court decision found at 60 IDELR 185 (E.D. Pa 2/09/13).
8. File focused, multiple complaints for impact.
Sometimes a reasonable strategy is to file multiple, focused complaints on a singular topic in a particular district. Generally, a minimum number would be at least 10. See, www.MyPhillySchools.com, as a way for parents to file state complaints in Philadelphia on key topics. In Minnesota, in one of the districts with particularly egregious services, we filed alternately, state complaint, due process and interchangeably with different issues with the same child. The result was that sometimes we would force a settlement because the district would know that even if they “won” the due process hearing, they might lose the state complaint or vice-versa. Of course, keep in mind that the issues must be different. 34 C.F.R. §300.152(C).
9. Insist on meaningful, face-to-face or phone call investigations.
The IDEA does not require an on-site investigation. 34 C.F.R. §300.152(a)(1). But such an on-site investigation can be done if the SEA determines that it is necessary. Request an on-site visit in the complaint and state factual reasons why it is necessary. If the state declines to conduct an on-site visit, this is again, something that can be useful in later advocacy should the complaint be unsuccessful.
10. Follow-up, contact, re-contact, question, and insist on investigation during the 60 day period.
Once the complaint is filed, usually a complaint investigator will be assigned. The time frame for completion of the complaint is 60 days. 34 C.F.R §300.152(a). Absent very unusual circumstances, insist on completion in 60 days. Contact the investigator frequently and regularly until the complaint decision is issued. If you receive communications from the investigator and anything in the communication is inaccurate, object in writing and correct errors. Even small errors can make a difference.
|
