This section covers the Code of Federal Regulations (CFR) regarding complaint procedures for special education services under Title 34 of the Individuals with Disabilities Education Act (IDEA). As with all of our sections regarding CFR, we will excerpt relevant sections in case you would like to view them directly while also providing summaries of those sections.
Before we begin, make sure to review the form provided under the “Complaints” section for the official form needed to file a state complaint, along with our instructions on how fill out the form. Before you file a complaint, you must make sure that the school or school district has violated some sort of rule or regulation regarding the special education of your child.
§ 300.152 Minimum State complaint procedures.
(a) Time limit; minimum procedures. Each SEA must include in its complaint procedures a time limit of 60 days after a complaint is filed under § 300.153 to—
(1) Carry out an independent on-site investigation, if the SEA determines that an investigation is necessary;
(2) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;
(3) Provide the public agency with the opportunity to respond to the complaint, including, at a minimum—
(i) At the discretion of the public agency, a proposal to resolve the complaint; and
(ii) An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with § 300.506;
(4) Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part; and
(5) Issue a written decision to the complainant that addresses each allegation in the complaint and contains—
(i) Findings of fact and conclusions; and
(ii) The reasons for the SEA’s final decision.
Once the State Education Agency (SEA) receives the complaint form, they have 60 days to conduct an independent on-site investigation. They must also allow you (the complainant) to give them additional information regarding the complaint (whether it’s through writing or by simply talking to them), let the school or school district to respond to the complaint and offer any proposals they may have to resolve the issue, or allow you and school to settle the issue through mediation. Once they’ve reviewed all the relevant information regarding the complaint, they will hand down a verdict, and put it in writing
(b) Time extension; final decision; implementation. The SEA’s procedures described in paragraph (a) of this section also must—
(1) Permit an extension of the time limit under paragraph (a) of this section only if—
(i) Exceptional circumstances exist with respect to a particular complaint; or
(ii) The parent (or individual or organization, if mediation or other alternative means of dispute resolution is available to the individual or organization under State procedures) and the public agency involved agree to extend the time to engage in mediation pursuant to paragraph (a)(3)(ii) of this section, or to engage in other alternative means of dispute resolution, if available in the State; and
(2) Include procedures for effective implementation of the SEA’s final decision, if needed, including—
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
The SEA can postpone their decision if the circumstances of the complaint are exceptional (which they must document and make a case for), or if you and the school go into mediation. If the SEA finds that the school or school district did in fact violate a rule or regulation, they must also provide a solution for how they should resolve the issue, whether that’s technical assistance, negotiations, or any kind of action that would begin to properly provide your child with all of their special needs aids and services.
(c) Complaints filed under this section and due process hearings under § 300.507 and §§ 300.530 through 300.532. (1) If a written complaint is received that is also the subject of a due process hearing under § 300.507 or §§ 300.530 through 300.532, or contains multiple issues of which one or more are part of that hearing, 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 action must be resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.
(2) If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties—
(i) The due process hearing decision is binding on that issue; and
(ii) The SEA must inform the complainant to that effect.
(3) A complaint alleging a public agency’s failure to implement a due process hearing decision must be resolved by the SEA.
If you file a due process hearing during a state complaint investigation, then the state complaint is suspended until the the due process hearing is resolved. If you file the same complaint as a state complaint and a due process hearing, then the state complaint will be dismissed.
§ 300.153 Filing a complaint.
(a) An organization or individual may file a signed written complaint under the procedures described in §§ 300.151 through 300.152.
b) The complaint must include—
(1) A statement that a public agency has violated a requirement of Part B of the Act or of this part;
(2) The facts on which the statement is based;
(3) The signature and contact information for the complainant; and
(4) If alleging violations with respect to a specific child—
(i) The name and address of the residence of the child;
(ii) The name of the school the child is attending;
(iii) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;
(iv) A description of the nature of the problem of the child, including facts relating to the problem; and
(v) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
This final section tells your how to file a complaint. We cover this process and the form that goes with it as part of our complaints section, so we won’t go too in-depth here. However, we should emphasize that you must send the complaint to both the SEA and the school or school district. If you still have any questions regarding the CFR or would just like ask questions regarding your child’s specific case, feel free to contact Legal Aid of Nebraska.