Who can file a state administrative complaint?
The federal regulations that implement the IDEA require each State to have in place a system for resolving any special education-related complaints, including those filed by organizations or individuals from other states. [34 C.F.R. § 300.151(a)] Unlike mediation or a due process hearing, which can only be requested by the parent of a child with a disability (or an adult student with a disability if rights have transferred) or a public education agency, any member of the community may file a complaint alleging that a public school has violated a requirement of Part B of the IDEA. This includes parents, advocates, attorneys, school personnel, etc. It is important to note that the State Educational Agency must maintain the confidentiality of student information and will not disclose or discuss confidential student information with a non-parent complainant unless the child’s parent provides written consent. For more information about the state complaint process, visit the state complaint webpage or contact the Dispute Resolution unit at 602-542-3084.
Can anyone file a due process complaint against a school?
No. Although anyone can file a state administrative complaint alleging a procedural violation of the IDEA [34 C.F.R. § 300.153(a)], the regulations that implement the IDEA specify that a “parent or a public agency may file a due process complaint on any [ ] matter [ ] . . . relating to the identification, evaluation or educational placement of a child with a disability, or the provision of [a] FAPE to the child.” [34 C.F.R. § 300.507(a)] Because “[a]ll rights accorded to parents under [the IDEA] transfer to the child” when that child reaches the age of majority according to 34 C.F.R. § 300.520(a)(1)(ii), a child who reaches the age of majority may also file a due process complaint.
Who can request mediation and what types of issues can be mediated?
Either a parent of a child with a disability or a public education agency may request mediation as a way to resolve disputes involving any matter that arises under the IDEA or its implementing regulations. [34 C.F.R. § 506(a)] Mediation may be used to resolve issues in a due process complaint or it may be requested, by the parent or the school, to address concerns or disputes that arise prior to the filing of a due process complaint. Mediation must be voluntary on the part of both parties and may not be used to deny or delay a parent’s right to a due process hearing. The Arizona Department of Education maintains a list of qualified mediators who are trained annually in the area of special education law. For more information on the benefits of mediation, visit the Dispute Resolution webpage or contact the Dispute Resolution unit at 602-542-3084.
What are a parent’s options if he/she disagrees with an IEP team decision?
IEP teams are encouraged to work toward consensus, but when this is not possible the individual designated as the public education agency representative on the IEP team must make a final decision and notify the parent of the decision via prior written notice (PWN). [Pasatiempo v. Aizawa, 103 F. 3d 796 (9th Cir. 1996)] While parents do not have veto power over IEP team decisions, they may challenge an IEP team decision that they disagree with by requesting mediation or filing a due process complaint against the school. [34 C.F.R. §§ 300.506(a) and 300.507(a) respectively] The IDEA provides these procedural safeguards as a means for resolving disputes between parents and schools concerning the identification, evaluation, placement, or the provision of a free appropriate public education (FAPE).
Are the SEA’s findings in a state administrative complaint appealable?
In a State complaint investigation, the State Education Agency (SEA) is required to issue a written decision that “addresses each allegation in the complaint and contains findings of fact, conclusions of law, and the reasons for the SEA’s final decision.” [34 C.F.R. § 300.152(a)(5)] The U.S. Department of Education has stated, “The regulations neither prohibit nor require the establishment of procedures to permit [a school] or other party to request reconsideration of a State complaint decision. 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.” [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)]
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)]
When the SEA orders corrective action in response to a state complaint, and there is a subsequent due process complaint or appeal, is the corrective action postponed until the due process complaint or appeal is resolved?
Corrective action must be completed as soon as possible but in no case later than one year after the SEA’s identification of procedural noncompliance. [34 C.F.R. § 300.600(e)] The United States Department of Education is clear that during the pendency of any reconsideration of a state complaint or during any due process hearing, even if the issues are the same as those in the state complaint, public schools must implement corrective action ordered by the State Educational Agency in order to ensure the correction of noncompliance. [See Questions and Answers on IDEA Part B Dispute Resolution Procedures, Question B-32 (U.S. Department of Education/Office of Special Education Programs (OSEP) July 2013); Letter to Deaton, 65 IDELR 241 (OSEP 2015)]
Can a state administrative complaint alleging a procedural violation of the IDEA only be filed against a school by a parent of a child with a disability?
No. The regulations that implement the IDEA state that “[a]n organization or individual may file a signed written complaint.” [34 C.F.R. § 300.153(a)] Although parents typically file complaints, this is not a right granted only to parents. In fact, anyone can file a complaint, including, but not limited to, a teacher, student, paraprofessional, neighbor, grandparent, school psychologist, advocate, etc. Unlike mediation or due process, which are procedural safeguards guaranteed to parents of children with disabilities, the state administrative complaint system falls under the State Educational Agency’s (SEA) general supervisory authority to ensure that public schools are complying with the requirements of Part B of the IDEA. Put another way, the complaint system is a way for the general public to alert the SEA that there may be noncompliance with IDEA in a public school and provides the SEA a way to conduct a targeted compliance monitoring. Please note that if the complainant is not the parent or legal guardian of the child that is the subject of the complaint, the Investigation Report, which is a confidential student record, will not be shared with the complainant absent written parental consent to disclose the record.
What happens if parties are able to resolve a dispute related to special education through mediation?
When issues are resolved through mediation, the parties (that is, the parent of a child with a disability and the school) must execute a legally binding agreement that is signed by both parties that sets forth the resolution and clearly states that all discussions that occurred during the mediation process shall remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. This mediation agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States. For more information on the benefits of mediation, visit the Dispute Resolution webpage or contact the Dispute Resolution unit at 602-542-3084.