FORMAL STATE COMPLAINT PROCEDURES

Transcription

1 North Carolina Department of Public Instruction Exceptional Children Division FORMAL STATE COMPLAINT PROCEDURES Relating to the Education of Students with Disabilities

2 INTRODUCTION The Individuals with Disabilities Education Improvement Act (IDEA) requires the State Education Agency (SEA) to adopt written procedures for the investigation and resolution of any complaint alleging that a public agency has violated a requirement of the IDEA. This document specifies the procedures used by the North Carolina Department of Public Instruction, Exceptional Children Division in the investigation and resolution of formal state complaints, as well as complaints which allege that a public agency has violated a requirement of the North Carolina General Statutes Article 9, Part 1A, Section 115C. NC Department of Public Instruction June S. Atkinson, State Superintendent 301 N. Wilmington Street, Raleigh, NC In compliance with federal law, including the provisions of Title IX of the Education Amendments of 1972, NC Public Schools administers all state-operated programs, employment activities and admissions without discrimination because of race, religion, national or ethnic origin, color, age, military service, disability, or gender, except where exemption is appropriate and allowed by law. Revised 8/23/07 2

3 DEFINITIONS Article 9 Business Day State Complaint Complainant Day NC Department of Public Instruction (NCDPI) Due Process Hearing Due Process Petition Due Process Resolution Session The North Carolina state laws governing special education. (Article 9 of Chapter 115C of the North Carolina General Statutes) Business day means Monday through Friday, except Federal and State holidays. A signed, written complaint stating that a public agency has violated a procedural requirement of the Individuals with Disabilities Education Improvement Act or the North Carolina laws regarding special education. Complainant means an individual or organization who has submitted the state complaint to the North Carolina Exceptional Children Division. Day means calendar day, unless specified otherwise. North Carolina s state education agency. A due process hearing is a formal hearing, which is guaranteed under federal and state special education law, before an impartial Administrative Law Judge. The parents and LEA may be represented by an attorney and may present evidence and sworn testimony to be considered by the Administrative Law Judge, who will issue a final written decision on the disputed issue(s). The party requesting a due process hearing must file a petition with the Office of Administrative Hearings (OAH) and the LEA. A model form is provided on the EC Division website. The resolution session is a required meeting (unless waived in writing by both parties) between the parent(s) of the child and the LEA to try and resolve the dispute before a hearing. Exceptional Children The EC Division of the North Carolina Department of Public Division (EC Division) Instruction is responsible for ensuring the implementation of federal and state laws pertaining to special education. Revised 8/23/07 3

4 FAPE IEP IEP Facilitation Local Educational Agency (LEA) IDEA Mediation Public Agency Related Services Special Education Special Education Laws A free appropriate public education (FAPE) means special education and related services designed to meet the unique needs of the student and provided at public expense. Individualized education program (IEP) means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with the regulations and through which the child receives a FAPE. IEP Facilitation is a process using a neutral facilitator to assist the IEP team members in communicating more effectively and keeping the focus on student outcomes. An IEP facilitator may be requested through the EC Division at no cost to the parent(s) or the LEA. A Local Education Agency is the local school system. In North Carolina this includes charter schools and stateoperated programs. IDEA means the Individuals with Disabilities Education Improvement Act, the federal special education law. Mediation is a voluntary process in which a neutral individual (mediator) assists the parties in having a full discussion and reaching an agreement. A mediator may be requested through the EC Division at no cost to the parent(s) or the LEA. Public Agency means a state agency that is responsible for providing education to children with disabilities. It includes the NCDPI; LEAs; Department of Health and Human Services; Department of Correction; and Department of Juvenile Justice, to the extent the public agency may be responsible for the provision of special education and related services and/or their actions impact upon a child s receiving a free appropriate public education. Related services are those required supportive services that enable a child with a disability to benefit from special education. Special education is specially designed instruction, at no cost to the parent, to meet the unique needs of a child with a disability. Special education laws include the federal statute, the Individuals with Disabilities Education Improvement Act Revised 8/23/07 4

5 (IDEA); accompanying federal regulations; NC General Statute (Article 9); and Procedures Governing Programs and Services for Children with Disabilities. State Educational Agency (SEA) The SEA is the North Carolina Department of Public Instruction. Revised 8/23/07 5

6 I. FILING A STATE COMPLAINT A. A signed complaint must be submitted to the Director of the Exceptional Children Division, Department of Public Instruction, 6356 Mail Service Center, Raleigh, NC Alternate submissions may include a signed complaint sent via facsimile or PDF file attached to an . A copy of the complaint must also be sent to the public agency against whom the complaint has been filed at the same time the complainant files the complaint with the EC Division. An individual who is unable to write may contact one of the parent organizations listed in Part VII of these procedures. If the complaint is being submitted by an organization, the complaint must be signed by a person who is authorized to represent the organization. A model complaint form is attached to these procedures, although this form does not have to be used to submit a complaint. B. The complaint must allege a violation that occurred not more than one year prior to the date that the complaint was received by the EC Division and include the following: 1. A statement that a public agency has violated either a requirement of the IDEA and/or a requirement of North Carolina statutes and state regulations regarding special education. 2. A listing of the facts that are the basis for the allegation(s). 3. The signature, address, and telephone number of the complainant. 4. All relevant documentation supporting the allegation(s). 5. If alleging violations with respect to a specific child, include: a. The name and address of the residence of the child; b. The name of the school the child is attending and the LEA; c. In the case of a homeless child, available contact information for the child and the name of the school the child is attending; d. A description of the nature of the problem affecting the child, including specific facts relating to the problem; and e. A proposed solution to the problem to the extent known and available to the party at the time the complaint is filed. II. INITIATION OF STATE COMPLAINT and SUBMISSION OF PUBLIC AGENCY S RESPONSE A. Initiation of a Complaint Investigation 1. A Consultant for Dispute Resolution, who is a member of the EC Division, will be assigned to take responsibility for the complaint. This consultant will conduct an independent review of each issue raised in the complaint. 2. The consultant will not review any issue in a complaint if the consultant determines that the issue is not a violation of either federal or state special education law, the issue is currently the subject of a due process petition, or the issue has been previously decided through a special education due process hearing or complaint. a. The consultant will notify the complainant that the issue will not be Revised 8/23/07 6

7 reviewed and that no further action will be taken regarding that issue. b. A copy of the notice will be forwarded to the public agency that is the subject of the complaint. 3. Within seven (7) business days of receipt of the written, signed complaint, the EC Division will review the complaint and send written notification of receipt of the complaint to the complainant, along with the Procedural Safeguards, and a complaint withdrawal form. 4. The EC Division will send written notification and a copy of the complaint to the public agency s superintendent or lead administrator, with a request for the public agency s written response to the alleged violation(s) and supporting documentation. 5. Both parties will be provided an opportunity to submit additional information about the allegation(s) in the complaint, either orally or in writing, within the initial twenty-three (23) days of the investigation. 6. If the EC Division determines that the complaint does not meet the criteria listed above (I.B.), the complainant and public agency will be notified in writing. a. The complainant will be given directions for resubmission of the complaint to the EC Division. b. Resubmitted complaints will be treated as new complaints. 7. If any individual, other than a parent, a student who has reached the age of majority, or their attorney, files a complaint, the EC Division will notify the complainant that it will inform such parent or adult student of its receipt of the complaint and will provide copies of the complaint and relevant correspondence, if any, to the parent, the student who has reached the age of majority, or their attorney. Unless a release of information is on file with the EC Division, the complainant will receive no further written communication resulting from the complaint process. B. Submission of the Public Agency s Response 1. The public agency s written response must be received by the EC Division within twenty (20) days of the superintendent s or lead administrator s receipt of the letter of notification. 2. A copy of the public agency s narrative response (not supporting documentation) must be simultaneously sent by the public agency to the complainant, if the complaint was filed by the parent of the child, the student who has reached the age of majority, or their attorney. 3. If the complaint was filed by another individual, the public agency must simultaneously send the response to that individual if a release signed by the parent or student who has reached the age of majority has been provided. 4. Failure to respond within the allotted twenty (20) days may result in findings of noncompliance or sanctions. III. EARLY STATE COMPLAINT RESOLUTION and MEDIATION A. With the initial notification, both the complainant and the public agency are advised that the LEA has twenty (20) days after its receipt of the notice of Revised 8/23/07 7

8 complaint to resolve the complaint on the local level, or to submit the public agency s written response to the Exceptional Children Division. B. The LEA is encouraged to work with the complainant to resolve the issues in the complaint within this time period. C. An extension of this twenty (20) day timeline for submitting documentation will be granted by the Consultant for Dispute Resolution, if necessary, for the parties to resolve the complaint on the local level. Both parties will be notified of the extension. 1. Such an extension, when granted, must not affect the sixty (60) day timeline for issuing the State Complaint Investigation Report by the EC Division. 2. An extension of the early resolution period will not affect the obligation of the public agency to submit its written response within twenty (20) days of receipt of the Notice of Complaint, unless the time period is otherwise extended. D. Early resolution may include the use of the IEP facilitation or special education mediation programs, available at no cost to the parties through the EC Division. Parties may request facilitation or mediation by submitting the written request forms, which are available on EC Division s website and in the Procedural Safeguards (Handbook on Parents Rights). 1. If the public agency is able to resolve the issues in the individual complaint, it must provide documentation of the resolution and corrections of any systemic violations to the EC Division. The resolution statement must state: the details of the resolution, that the complainant and the LEA have agreed to the resolution, and that all issues raised in the complaint have been satisfactorily resolved. 2. For complaints not involving a specific student, the resolution statement must state: the details of the resolution, that the complainant and the public agency have agreed to the resolution, and that all issues raised in the complaint have been satisfactorily resolved. 3. For complaints involving a failure to provide services and that failure impacts more students than the one student who is the subject of the investigation, the public agency must provide documentation of the action taken to correct the violation for all impacted students. 4. Upon receipt of documentation of resolution of all the issues in the complaint and the withdrawal letter/form signed by the complainant, the EC Division will close its investigation of the complaint. E. If the public agency is unable to resolve the complaint, the public agency must provide the EC Division with its written response to the alleged violation(s) and the requested documentation within the twenty (20) day timeline. IV. STATE COMPLAINT INVESTIGATION A. A Consultant for Dispute Resolution will: 1. Review all relevant information; Revised 8/23/07 8

9 2. Conduct interviews and an independent on-site investigation, if determined necessary; and 3. Make an independent determination as to whether or not the public agency violated the law. B. Depending on their nature, issues may be referred by the EC Division to legal counsel for the SEA or the U. S. Department of Education for review. V. STATE COMPLAINT INVESTIGATION REPORT A. Duties of the EC Division 1. The EC Division will issue a written decision within sixty (60) days of the date the EC Division received the complaint. The decision will address each allegation in the complaint and contain findings of facts and conclusions of law. The written decision is final. 2. The EC Division will send the State Complaint Investigation Report to the parent, student who has reached the age of majority, or individual who filed the complaint, and the superintendent or lead administrator of the public agency involved in the complaint. A copy of the letter will also be sent to the EC Director of the public agency, the school s principal, and the NC DPI Regional Consultant. 3. If the LEA is found in compliance, the complaint file will be closed. 4. If the LEA is found in noncompliance: a. The report will specify the requested corrective action(s) to be taken, along with specific timelines for completion of the corrective action(s). b. The complaint file will remain open until proof of compliance with the corrective action is obtained and approved by the Regional Consultant, who will then recommend to the EC Division closure of the case. B. An extension of the sixty (60) day time limit may occur if: 1. Exceptional circumstances exist with respect to a particular complaint; or 2. The parties involved agree to extend the time to engage in mediation or other alternative means of dispute resolution. 3. Both parties to the complaint will be notified in writing by the EC Division of the nature of the extension and the extended time limit. VI. CORRECTIVE ACTIONS A. The public agency must report completion of the corrective action(s) to the EC Regional Consultant by the date(s) set forth in the Corrective Action Plan (CAP). The date(s) may be extended at the discretion of the Consultant for Dispute Resolution, not to exceed one (1) year from the issuance of the State Complaint Investigation Report. 1. The Regional Consultant will contact the complainant to verify that any corrective actions requiring individual services for the student have been implemented. Revised 8/23/07 9

10 2. The Regional Consultant will notify the EC Division of the status of the corrective action(s) within seven (7) days of the date(s) in the CAP. a. Following confirmation that all corrective actions have been implemented, the Regional Consultant will notify the EC Division. b. The State EC Director will send a closing letter to the superintendent and the complainant with a copy to the LEA s EC Director. B. If the LEA does not complete the necessary corrective action(s) within the time required, the matter may be resolved using the sanctions in General Statute 115C-107.4(b) (2), (d), and (e). VII. DISTRIBUTION OF STATE COMPLAINT PROCEDURES A. The EC Division will ensure that a copy of these procedures is available to parents, other interested individuals and interested organizations by providing a copy to each of the following organizations which support parents of children with disabilities including: Exceptional Children s Assistance Center; Family Support Network of North Carolina; Carolina Legal Assistance; Legal Aid of North Carolina; and North Carolina Special Needs Federation. B. The procedures will also be available on the EC Division s website ( In addition, the EC Division will mail or a copy of these procedures to individuals and organizations upon request. If you have questions about the Complaint Resolution Process, contact the Exceptional Children s Assistance Center at or a Consultant for Dispute Resolution at the Department of Public Instruction, EC Division at or facsimile at Revised 8/23/07 10

11 North Carolina Department of Public Instruction Exceptional Children Division Formal Complaint Form Instructions: Submit a copy to your local school system s Exceptional Children Director Submit the signed original to: Mary N. Watson, Director of EC Division Department of Public Instruction 6356 Mail Service Center Raleigh, NC This form has been developed to assist in filing an IDEA formal state complaint. This form is not required, however, all information requested must be provided. Failure to provide all information may delay the complaint investigation. You will be contacted by the Division regarding your complaint. For DPI use Case No. Assigned Date Received Due Date I. General Information Name of Complainant Relationship to student Address: Street, City, State, Zip Telephone Numbers and best time to call Name of Student Student s Address [In case of homeless youth, provide contact information] Local Education Agency (school system) School student attends II. Complaint and Supporting Facts Number and list each alleged violation separately. Describe the violation and the specific facts that relate to that violation. If possible, include dates, names and locations. You may attach more pages if you need additional space. Revised 8/23/07 11

12 Special Education State Complaint Form Page 2 III. Proposed Solution Describe what you think needs to be done to correct the problem if you know or have any specific ideas at this time. IV. Mediation Are you interested in mediation to try to resolve the complaint? Would you like more information about mediation? V. Signature Signature of Complainant (Required) Date Please attach any other information and supporting documents, such as a copy of the student s IEP (not the original). Revised 8/23/07 12