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U.S. Department of Education: Promoting Educational Excellence for all Americans

Adoption of State complaint procedures (Sec. 300.151)

Comment: Many commenters recommended that only issues related to violations of the law should be subject to the State complaint process. One commenter stated that the State complaint procedures should be used only for systemic violations that reach beyond the involvement of one child in a school.

A few commenters requested that the regulations clarify that the State complaint procedures can be used for the denial of appropriate services and the failure to provide FAPE in accordance with a child's IEP. However, some commenters requested that the regulations clarify that disputes involving appropriateness of services and whether FAPE was provided should be dealt with in a due process hearing. One commenter stated that the State complaint procedures should be used to investigate whether required procedures were followed and not to determine if evaluation data and student-specific data support the IEP Team's determination of what is appropriate for the child. The commenter went on to state that the procedures for administrative hearings permit the examination and cross-examination of expert witnesses and establishing the credibility of the testimonies, which are the functions of a hearing officer, not SEA complaint specialists.

Discussion: Some commenters, as noted above, seek to limit the scope of the State complaint system. We believe the broad scope of the State complaint procedures, as permitted in the regulations, is critical to each State's exercise of its general supervision responsibilities. The complaint procedures provide parents, organizations, and other individuals with an important means of ensuring that the educational needs of children with disabilities are met and provide the SEA with a powerful tool to identify and correct noncompliance with Part B of the Act or of part 300. We believe placing limits on the scope of the State complaint system, as suggested by the commenters, would diminish the SEA's ability to ensure its LEAs are in compliance with Part B of the Act and its implementing regulations, and may result in an increase in the number of due process complaints filed and the number of due process hearings held.

We do not believe it is necessary to clarify in the regulations that the State complaint procedures can be used to resolve a complaint regarding the denial of appropriate services or FAPE for a child, since Sec. 300.153 is sufficiently clear that an organization or individual may file a written complaint that a public agency has violated a requirement of Part B of the Act or part 300. The State complaint procedures can be used to resolve any complaint that meets the requirements of Sec. 300.153, including matters concerning the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child.

We believe that an SEA, in resolving a complaint challenging the appropriateness of a child's educational program or services or the provision of FAPE, should not only determine whether the public agency has followed the required procedures to reach that determination, but also whether the public agency has reached a decision that is consistent with the requirements in Part B of the Act in light of the individual child's abilities and needs. Thus, the SEA may need to review the evaluation data in the child's record, or any additional data provided by the parties to the complaint, and the explanation included in the public agency's notice to the parent as to why the agency made the determination regarding the child's educational program or services. If necessary, the SEA may need to interview appropriate individuals, to determine whether the agency followed procedures and applied standards that are consistent with State standards, including the requirements of Part B of the Act, and whether the determination made by the public agency is consistent with those standards and supported by the data. The SEA may, in its effort to resolve a complaint, determine that interviews with appropriate individuals are necessary for the SEA to obtain the relevant information needed to make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of part 300. However, such interviews conducted by the SEA, as part of its effort to resolve a State complaint, are not intended to be comparable to the requirement in section 615(h)(2) of the Act, which provides any party to a due process hearing the right to present evidence and confront, cross-examine, and compel the attendance of witnesses.

In addition, a parent always has the right to file a due process complaint and request a due process hearing on any matter concerning the identification, evaluation, or educational placement of his or her child, or the provision of FAPE and may seek to resolve their disputes through mediation. It is important to clarify that when the parent files both a due process complaint and a State complaint on the same issue, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process hearing must be resolved using the State complaint procedures in Sec. 300.152, including using the time limit and procedures in paragraphs (b) and (d) of Sec. 300.152. (See Sec. 300.152(c)(1)). Under the Act, the decision reached through the due process proceedings is the final decision on those matters, unless a party to the hearing appeals that decision by requesting State-level review, if applicable, or by bringing a civil action in an appropriate State or Federal court.

Changes: None.

Comment: A few commenters requested amending Sec. 300.151(a)(2) to specifically include school personnel and teacher organizations in the list of entities to whom the SEA must disseminate the State complaint procedures. Another commenter requested that representatives of private schools or residential treatment facilities be included on the list of entities to whom the State must disseminate complaint procedures.

Discussion: Section 300.151(a)(2) already requires the State to widely disseminate the State complaint procedures in Sec. Sec. 300.151 through 300.153 to parents and other interested parties, including parent training and information centers, protection and advocacy organizations, independent living centers, and other appropriate entities. There is nothing in these regulations that would prevent a State from disseminating information about the State complaint procedures to school personnel, teacher organizations, or representatives of private schools or residential facilities. However, we believe this decision is best left to the States. We do not believe that there is a need to add these entities to the mandatory distribution as individuals involved in the education of children with disabilities are generally acquainted with these procedures.

Changes: None.