State Complaint Procedures

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Mitchell Robbins
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1 Due Process Complaint and Hearing Dr. Malcolm Conner Bureau of Special Education 333 Market Street Harrisburg, PA Revised December 21, 2010 Sources of Information Legal Boundaries for the IDEA Complaint Resolution Process by Perry A. Zirkel A Roadmap to Legal Dispute Resolution for Students with Disabilities by Perry Zirkel, Ph.D., J.D., LL.M. and Brooke L. McGuire, J.D. Specialedconnection.com 34 CFR CFR Complaint Management Manual 1

2 Acronyms Bureau of Special Education (BSE) Complaint Investigation Report (CIR) Local Education Agency (LEA) Pennsylvania Department of Education (PDE State Education Agency (SEA) Terms Procedural Safeguards Notice Prior Written Notice (Notice) Due Process Complaint and Hearing Court Decision Schaffer v. Weast (44 IDELR 150) 2

3 34 CFR For the purpose of this webinar: Website: Due Process Complaint and Hearing Website: Why is there a need for state complaint procedures? Regulations Disagreements Is there a timeline for filing a written complaint with the BSE? 34 CFR Adoption of State complaint procedures What Bureau within Pennsylvania Department of Education has responsibility for the implementation of complaint procedures? What types of issues are submitted? Are there timelines for the completion of the complaint process? What about an extension? Who can file a written complaint? Are there specific forms to be used? Bureau of Special Education (BSE) Local Education Agency (LEA)» Copy (34 CFR 300/153(d)» Procedural Safeguards Notice (34 CFR (a)(2) 3

4 State Compliant Procedures What is the process once a written complaint is filed with the Bureau of Special Education? Contents of the complaint Name and address of child School attending Description of the problem Proposed resolution Other information as per the complaint form Complaint recorded Assigned Assignment of complaint Contact complainant Obtain additional information Issue acknowledgement letter Contact LEA Discuss issues Request documents Schedule on-site visit (if needed) Is there a local resolution period? What does this occur? How long do the parties have to resolve the complaint? 4

5 Determination regarding allegations What is the LEA s duty? Alleged Regulations Provided Review all relevant data Independent determination» Allegations vs. compliance with regulations Complaint report Verbal? Written? Complaint report Findings of facts and conclusions Allegations not valid Issue report» No corrective action Allegations valid Issue report» Specify corrective action Appeal procedure Reconsideration 5

6 What if an allegation filed with the written complaint to the BSE and also part of a due process hearing? Set aside that part of the complaint until the conclusion of the hearing Due process decision is binding on that allegation Any allegation not part of a due process hearing must be resolved within the sixty-day timeline. What if an allegation that already was decided as part of a due process hearing is part of the written complaint? Summary: Individual or organization file What about sharing personally identifiable information? Allegations vs. jurisdiction Timelines Complaint report Corrective action State complaint procedures Not administrative Not judicial What about attorney fees? 6

7 Mediation Process Is there something besides due process? Mediation (34 CFR et. al.) Less formal process to resolve disagreements Parties agree Mediator assigned State bears cost of mediation process Timely schedule/convenient location Agreement» Written and signed» Legally binding» Enforced through courts Discussions confidential» Evidence in due process hearing? In Pennsylvania, status of student during mediation (22 PA Code (s) Due Process Complaint and Hearing 34 CFR Definition Due Process Complaint and Hearing Why is there a need for due process complaint and hearing? Regulations Disagreements Is there a timeline for filing a due process complaint? Who can file for a due process complaint? Filing party submits copy to the State Education Agency (SEA). Are there specific forms to be used? Model forms Burden of proof 7

8 Due Process Complaint and Hearing Contents of the due process complaint Name and address of student Name of school Homeless children Description of problem Proposed resolution Sufficiency of due process complaint Amending the due process complaint Hearing officer agrees Resolution timelines Due Process Complaint and Hearing LEA response to due process complaint 10 calendar days of receipt Issue prior written notice explaining why (34 CFR (e)(i-iv)» Proposes or refuses to take action raised in due process complaint» Other option considered and why rejected» Data used as basis for proposal p or rejection» Other factors relevant to proposal or rejection by LEA 8

9 Due Process Complaint and Hearing Resolution process Convene meeting with parent and relevant members of IEP team What if the LEA does not convene the meeting? What if parent fails to participate in resolution meeting? Attorneys present? Purpose of meeting Can the resolution meeting be waived? What about mediation? Resolution period What if the matter is not resolved within thirty calendar days? Due Process Complaint and Hearing Due process hearing Hearing officer Qualifications Hearing rights Representation Advised Present evidence Have witnesses Cross examine witnesses No evidence not presented five business days before hearing Open/closed hearing Have child present Obtain record of hearing at no expense 9

10 Due Process Complaint and Hearing Hearing decision Within forty five calendar days after the expiration of the thirty-day resolution period Extensions at the discretion of the hearing officer Decision is final Appeal Timelines Due Process Complaint and Hearing Appeals One-tier system Status of child during proceedings Stay put/pendency Administrative proceedings Judicial proceedings Exception 34 CFR (d) Hearing officer agrees with parent that change in placement appropriate, that placement must be treated as agreement between the State and parent. Enforcement of hearing officer s decision Implementation of hearing officer s order 10

11 Due Process Complaint and Hearing Summary Questions and responses 11

BUREAU OF SPECIAL EDUCATION COMPLAINT INFORMATION PACKET AND FORM

BUREAU OF SPECIAL EDUCATION COMPLAINT INFORMATION PACKET AND FORM November 2006 Dear (Parent/Guardian/Complainant): Thank you for contacting the Bureau of Special Education (BSE) and providing us with