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Michael Dorfman
BY Michael Dorfman
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What is the Difference Between a State Complaint and Due Process?

There are times where a parent of a child with special needs has a valid complaint against their child’s school or school district. There may be some confusion about what complaint to make and where to make it.

State complaints and due process complaints are two separate means to allege a violation by the LEA, or Local Education Authority (typically the school district) of any Part B requirement of their state or federal special education law (Individuals with Disabilities Education Act, “IDEA”).  This article will explain the differences between the two types of complaints, and which mechanism would best serve you should there be a disagreement between you as the parent/guardian and your child’s LEA.

Subject Matter

A state complaint or resolution system considers violations of any state or federal education law. An example would be if a child’s IEP slated him to have speech 1 time a week and no speech was provided for 2 months then a state complaint should be filed.

A due process complaint considers the proposal or refusal to initiate or change the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to a child. An example would be If a child is placed in a center-based program or given a category of eligibility that the parent(s)/guardian(s) disagrees with, i.e. cognitive impairment, then a due process complaint would be the proper mechanism.

Who Can File Complaints?

Filing A State Complaint

Any individual or organization may file a state complaint if they are aware of any violations of state or federal education laws.  The filer of the complaint does not have to be a parent/guardian of, or even affiliated in any way to the affected party or parties.

Any individual or organization that learns that a school district and/or its agents are violating a state or federal law, they may file a state complaint.  Even a teacher who works for the district could file a complaint if he or she is aware that services are not being delivered as required by law.  A state complaint can be filed regarding one student, or an entire classroom of students.

Filing a Due Process Complaint

Due process complaints and requests for hearings can only be filed by a parent/guardian of the affected student or the school district may also file a due process complaint against the parent/guardian and request for hearing.

Time Parameters

State complaints must be filed within one year of the violation of the education law.  Due process complaints must be filed within two years of the violation of the special education law.

How to Initiate A State Complaint

Most state educational agencies (“SEA”) have a form that can be filled out to initiate the complaint.  Under IDEA, the complaint must include:

  1. A statement that a public agency (school district) has violated a state or federal education rule(s) or law(s)
  2. The facts on which the statement is based
  3. The signature and contact information for the complainant
  4. If alleging violations with respect to a specific child
    a.The name and address of the residence of the child
    b. The name of the school the child is attending
    c. In the case of a homeless child or youth, 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 of the child,  including facts relating to the problem
    e. A proposed resolution of the problem to the extent known and  available to the party at the time the complaint is filed.

How to Start Due Process

The due process complaint begins the opportunity for an impartial due process hearing, in what is like a mini-trial.

  1. This is a formal proceeding.
  2. Complaints must be written, signed, and include a statement that the public agency violated a requirement of state or federal education law as well as the facts that upon which the statement is based.
  3. The other side must receive a copy of the complaint upon filing.
  4. IDEA requires that the due process complaint contain the following information to be deemed “sufficient”: the child’s name, the address of the child’s residence, the name of the school the child attends, a description of the nature of the child’s problem relating to the proposed action or refusal that’s causing the conflict, and facts upon which the complaint is based, and a proposed resolution of the problem to the extent known and available to the person filing the complaint.
  5. Parent(s)/guardian(s) may file a due process complaint without an attorney, but attorney representation is always best in this type of legal setting.

Receipt of the Complaint and Resolution

Once a state complaint is filed, the SEA must ensure that the matter is resolved within 60 days from the date the complaint is filed (unless an extension of the timeline is permitted.) The SEA is required to carry out an on-site investigation, if the SEA determines that an investigation is necessary.

The SEA must also give the complainant the opportunity, in writing or orally, to submit additional information and also allow the school to respond to the complaint.  Once all relevant information is reviewed, the SEA will make an independent determination on the complaint and issue a written decision.

What if the school district is found to be noncompliant?

If the school district is found to be noncompliant, the final decision will include corrective action(s) with a timeline for completion.  The school district must implement and complete the corrective action and provide proof to the SEA.  Some examples of corrective action are requiring staff training, convening an IEP team meeting, providing compensatory services or reimbursing educational expenses.

In a due process complaint, the SEA will assign the matter to an impartial hearing officer.  The parents and the school district staff will then have a multi-day hearing where they present their versions of the disagreement to a hearing officer through documents and oral testimony at a hearing.

The parties to the hearing have an opportunity to present and cross-examine witnesses, to have a record of the proceedings, and to enter and object to evidence.  Parties can subpoena witnesses and testimony is under oath.  The due process hearing decision must be issued 45 days after the conclusion of the resolution process unless the hearing officer grants a request to postpone the hearing.

Conclusion

The state complaint process is far simpler for the complainant and a lot less costly than due process.  However, based upon the subject matter of the complaint, a family may have no choice but to file for due process.  If you are considering filing for due process, always consult with an attorney first.  The school district will always have an attorney present in a hearing.

Michael Dorfman

Written on February 6, 2014 by:

Michael R. Dorfman is an attorney and partner at Nykanen Dorfman, PLLC in Farmington Hills, Michigan.  In his special education law practice, Michael represents students and their families when there is a conflict with the school district or when an appropriate education is not being provided.
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