FAQ: State Complaints and Corrective Action
This information is intended to provide guidance about requirements under IDEA Part B. It does not address every requirement contained in A.A.C. R7-2-405.01, and it is not legal advice. The intent is to support and not replace careful study of the IDEA and its implementing regulations, or Arizona Revised Statutes and the Arizona State Board of Education rules pertaining to special education.
What is a special education state administrative complaint?
A state administrative complaint is a way for members of the community to notify the Arizona Department of Education (ADE) that a public school is or may be in noncompliance with the Individuals with Disabilities Education Act (IDEA). ADE is responsible for ensuring that public education agencies (PEA), which include school districts and charter schools, comply with Part B of the IDEA – the law governing special education for children ages 3 through 21. This is accomplished through a system of compliance monitoring that includes the state complaint system, described in the federal regulations at 34 C.F.R. §§ 300.151-153.
The United States Department of Education has described the broad scope of the state complaint system as “critical” for providing “parents, organizations, and other individuals with an important means of ensuring that the educational needs of children with disabilities are met and provid[ing] the SEA with a powerful tool to identify and correct noncompliance with Part B of the Act or of part 300.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B–State Eligibility, Federal Register, Vol.71, No. 156, p. 46601 (August 2006)] Accordingly, a complaint is considered a request for the ADE/Dispute Resolution to investigate an alleged failure by a PEA to comply with a legal requirement of the IDEA. Dispute Resolution is tasked with investigating complaints to determine whether the alleged noncompliance is present within the PEA and, if so, to order the PEA to correct the noncompliance.
Who can file a complaint?
What is the difference between a special education complaint and a due process hearing?
A special education state complaint can be filed by anyone. The complaint process typically involves one or more allegations of procedural violations. For example, a parent may allege that a school has not provided special education and/or related services to his or her child with a disability in accordance with the child’s individualized education program (IEP). Another example may be an allegation that a school did not evaluate a child within mandated timelines. A complaint can also focus on a process or procedure that violates a special education law or regulation.
A due process hearing can only be requested by a parent, legal guardian, or student who has reached the age of majority (18 in Arizona), or by a public school, to address disagreements relating to the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) for the child. Due process hearings generally involve substantive (as opposed to procedural) disputes between the parent and the public school over the appropriateness or nature of the student’s program or services.
What does Dispute Resolution do when it receives a state complaint?
If the complainant has not alleged a possible violation of IDEA Part B, Dispute Resolution will send the complainant a letter explaining why it cannot open an investigation. If there is an allegation of a possible violation of IDEA Part B, an investigator will be assigned. He/she will identify issues for investigation and will notify the district or charter school that is the subject of the complaint that a complaint investigation has been opened. The complainant will be given an opportunity to submit additional information about the complaint, either verbally or in writing, and the PEA will be given an opportunity to respond to the complaint. The district or charter may provide a written response and documents supporting the response, or it may choose to respond to the complaint verbally through interviews with the investigator. All parties are asked to provide any written documentation within 30 days of the date the complaint is opened.
The investigator reviews all documentation provided by both parties. When needed, the investigator may request additional information, conduct interviews, review other student files, and/or conduct a site visit.
Who are the complaint investigators and are they advocates for the complainant or the school?
Are there issues Dispute Resolution cannot investigate, and who addresses concerns that do not fall under the IDEA?
- The state complaint system for special education is not available to investigate allegations of civil rights violations related to disability. These matters should be addressed directly with the United States Department of Education/Office for Civil Rights (OCR).
- Allegations regarding Section 504 accommodation plans should also be addressed to the United States Department of Education/OCR.
- PEAs are responsible for the general day-to-day operation of schools, including supervision of personnel and the administration of programs. Accordingly, personnel issues or general education matters are not handled by the state complaint system, and should instead be addressed through the PEA’s administrative channels or to its governing board.
- Allegations of immoral or unprofessional conduct by certificated school personnel should be addressed to the Arizona State Board of Education/Investigative Unit.
- Allegations of abuse or neglect of children by school personnel should be directed to local law enforcement.
- Allegations that a PEA has violated a child’s right to confidentiality with respect to records that are not collected, maintained, or used under Part B of the IDEA should be addressed to the U.S. Department of Education/Family Policy Compliance Office (FPCO). On the state level there is a parallel mechanism available. Arizona Revised Statutes states, “Any person who suspects that a school district or charter school has knowingly violated the Family Educational Rights and Privacy Act [FERPA] may notify the principal of the charter school or the superintendent of the school district. If the matter is not satisfactorily resolved by the principal of the charter school or the superintendent of the school district within 60 days after the notice, the person may file a complaint with the [Arizona] superintendent of public instruction.” [A.R.S. § 15-142(C)]
- Allegations that a PEA will in the future violate the IDEA or allegations that involve hypothetical situations cannot be investigated. The regulations that implement the IDEA state that the allegation must be that a school has violated a requirement of Part B of the IDEA.
Will Dispute Resolution investigate a nonspecific allegation of noncompliance with the IDEA?
How long does it take to investigate a complaint?
What happens if the investigator finds a violation?
What is corrective action and why is it ordered?
Corrective action can be individualized to provide relief for a particular child or children who are impacted by the identified noncompliance, when appropriate, and/or may be systemic in nature, that is designed to encourage systemic or programmatic improvements within a PEA. Indeed, it is the longstanding position of the United States Department of Education that, “The Part B state complaint procedures are intended to address both systemic and child specific violations. In order to meet its general supervisory responsibility under [the IDEA regulations], [Dispute Resolution] must resolve complaints in a way that provides individual relief, when appropriate, and addresses systemically the provision of appropriate services for all children with disabilities.” [Letter to Warkomski, 102 LRP 12928 (OSEP 2001)]
Corrective action is not punitive. Dispute Resolution does not have the authority to sanction or terminate personnel, to levy fines against personnel or PEAs, or to award punitive damages to children involved in a complaint or complainants. PEAs must comply with Dispute Resolution’s corrective action orders in order to reestablish compliance and to ensure Dispute Resolution does not have to move to enforcement actions as required under the IDEA, which, after the opportunity for a hearing, may include interruption of IDEA funds to the PEA.
How long does it take Dispute Resolution to order corrective action in state administrative complaints?
Who decides what the corrective action will be?
What are compensatory services and when does Dispute Resolution order compensatory services as corrective action?
Compensatory services are not expressly defined in the IDEA; however, courts [under the authority granted them in 20 U.S.C. § 1415(i)(2)(C)(iii) and 34 C.F.R. § 300.516(c)(3)] have long awarded compensatory education as an appropriate remedy under the IDEA when a student has been denied a FAPE in the past and can be awarded as appropriate equitable relief. [Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1496-97 (9th Cir.1994)] “Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the [IDEA]” and “[t]here is no obligation to provide a day-for-day compensation for time missed.” [Parents of Student W. at 1497] In other words, compensatory services may take a variety of forms and is not necessarily minute-for-minute replacement services.
The Director of Compliance and Training will carefully review the complaint investigator’s findings of fact and conclusions to evaluate the nature of the noncompliance and its impact on the child or children involved and will make a determination of the types and amounts of compensatory services, if any, that would provide appropriate equitable relief. Because Dispute Resolution has the authority to investigate only special education matters, it is important to understand that compensatory services would be intended to compensate for a PEA’s failure to make special education and related services available to the child or children in conformity with their IEPs, not just to make up for instructional or school time that was missed in general. Additionally, regardless of the type of environment in which a child with a disability is educated, it would be quite rare for the child’s entire school day to consist of only special education and related services. Thus, it would be equally rare that a corrective action order of compensatory services to account for a child’s entire school day would be appropriate equitable relief.
Are the SEA’s findings in a state administrative complaint appealable?
In Arizona, if the public education agency disagrees with a finding made in a state complaint, it may bring an action for administrative review pursuant to A.R.S. § 41-1092.03. The request for administrative review must be in writing and filed with the Arizona Department of Education (Department) within 30 calendar days of receiving the Investigation Report. [A.R.S. § 41-1092.03(B)] Additionally, the U.S. Department of Education has explained, “[i]f after the SEA’s final decision is issued, a party who has the right to request a due process hearing and who disagrees with the SEA’s decision may initiate a due process hearing, provided 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.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol.71, No. 156, p. 46607 (August 2006)]