Dated July 17, 2000

Contact Persons

Names: Camellia Wang

> JoLeta Reynolds

Telephone: (202) 205-5507

OSEP 00-21

**MEMORANDUM**

TO: Part C Lead Agencies

FROM: Kenneth R. Warlick

> Director
>
> Office of Special Education Programs

SUBJECT: Complaint Resolution Procedures under Part C of the Individuals
with Disabilities Education Act (Part C)

**INTRODUCTION**

The purpose of this Memorandum is to provide guidance on the State
complaint procedures that are set out at 34 CFR §§303.510-303.512 of the
final Part C regulations, published in the [Federal
Register]{.underline} on March 12, 1999. The Department wishes to
highlight these procedures to provide for more clarity and consistency
in the effective implementation of Part C of the Individuals with
Disabilities Education Act (Part C). For State complaint procedures
applicable to Part B of the Act, refer to OSEP Memorandum 00-20 being
issued at the same time as this memorandum.

Part C's State complaint procedures are critical to each State's
exercise of its general supervision responsibilities because they
provide parents with an important means of ensuring that the early
intervention and developmental needs of their children are met and
provide the lead agency with a powerful tool to identify and correct
noncompliance with Part C of the IDEA and its implementing
regulations.[^1] As part of its general supervisory responsibility, each
lead agency must implement complaint resolution procedures in a manner
that meets the requirements of §§303.510-303.512 (see Section I).
Because of the important role that effective State complaint resolution
plays for parents, responsible entities (including any public agency or
private service provider acting on behalf of the State), and the lead
agency in meeting its general supervisory responsibility, each State's
complaint procedures are addressed in OSEP's continuous improvement
monitoring process. Implementation of the State complaint procedures,
which is the responsibility of the lead agency, has the potential for
providing a less costly and more efficient mechanism for resolving
disputes than the impartial due process hearing system. Therefore,
effective implementation of the complaint resolution procedures likely
will have a positive impact on both parents and state lead agencies.

This Memorandum is divided into three sections. Section I outlines the
State complaint procedures, focusing on the language of
§§303.510-303.512. Section II provides information regarding the
relationship between the complaint resolution and due process hearing
procedures in the Part C regulations. Finally, Section III presents in
question-and-answer format certain areas of the State complaint
procedures that are of key concern to the public.

The following is a description of the requirements for State complaint
procedures, as set out in §§303.510-303.511.

A. [Adoption of State Complaint Procedures; Filing a
Complaint]{.underline}. (§§303.510 and 303.511)

Generally, §303.510 requires each lead agency to adopt written
procedures for resolving any complaint, including any complaint filed by
any organization or individual from another State, that any public
agency or private service provider (hereinafter, \"entity\") is
violating a requirement of Part C. Under §303.510(a)(1), these
procedures must \--

1.  Provide for the filing of a complaint with the lead agency;

2.  At the lead agency\'s discretion, provide for the filing of a
    complaint with a public agency, and the right to have the lead
    agency review the public agency\'s decision on the complaint; and

3.  Provide for wide dissemination to parents and other interested
    individuals, including parent training and information centers,
    protection and advocacy agencies, independent living centers, and
    other appropriate entities, the State\'s procedures under
    §§303.510-303.512. Another section of the regulations,
    §303.403(b)(4), requires that the procedural safeguards notice that
    goes to individual parents include a full explanation of the State
    complaint procedures, including how to file a complaint and the
    timelines under those procedures.

As specified at §303.511(a)(1) and (2), an organization or individual
may file a signed written complaint that includes: (1) a statement that
an entity has violated a requirement of Part C or its regulations; and
(2) the facts on which the statement is based. Section 303.511(b)
provides that an alleged violation must have occurred not more than one
year prior to the date that the complaint is received by the public
agency unless a longer period is reasonable because the violation is
continuing for the child or other children, or the complainant is
requesting reimbursement or corrective action for a violation that
occurred not more than three years prior to the date the complaint is
received by the public agency. Allegations of violations outside of
these time frames do not have to be accepted by the public agency.

B.  [Minimum State Complaint Procedures]{.underline}. (§303.512)

Each lead agency, under §303.512(a), is required to include in its
complaint procedures a time limit of 60 calendar days after a complaint
is filed under §303.510(a) to --

1.  Carry out an independent on-site investigation, if the lead agency
    determines that such an investigation is necessary;

2.  Give the complainant the opportunity to submit additional
    information, either orally or in writing, about the allegation(s) in
    the complaint;

3.  Review all relevant information and make an independent decision as
    to whether the entity is violating a requirement of Part C; and

4.  Issue a written decision that addresses each allegation in the
    complaint and contains --

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a.  Findings of fact and conclusions, and

b.  The reasons for the lead agency\'s final decision.

In addition, the State\'s complaint procedures must include the
following:

-   Permitting an extension of the time limit under §303.512(a) only if
    exceptional circumstances exist with respect to a particular
    complaint (§303.512(b)(1)), and

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-   Procedures for the effective implementation of the lead agency\'s
    final decision, if needed, including technical assistance
    activities, negotiations, and corrective actions to achieve
    compliance (§303.512(b)(2)).

**II. [RELATIONSHIP BETWEEN THE STATE COMPLAINT RESOLUTION AND DUE
PROCESS HEARING SYSTEMS]{.underline}**

Under the Part C regulations, parents of children with disabilities have
two separate means available to them for resolving disputes with
entities concerning services for their children \-- i.e., (1) the State
complaint resolution system required in §§303.510-303.512 (the subject
of this memorandum), and (2) the impartial due process hearing system
required in §303.420. States also are required to have mediation,
consistent with §303.419, available at a minimum when a due process
hearing is requested.

The State complaint procedures are available for resolving
[any]{.underline} complaint that meets the requirements of §303.512,
including: (1) complaints that raise systemic issues, [and]{.underline}
(2) individual child complaints. Parents may use (but are not required
to use) the complaint procedures \-- in addition to the due process
hearing system \-- to resolve disagreements with entities over any
matter concerning the identification, evaluation, or placement of the
child, or the provision of appropriate early intervention services to
the child and the child's family, as well as any other allegation that
an entity has violated Part C.

It is impermissible under Part C for a lead agency to: (1) have a
procedure that removes complaints about early intervention services or
any other matter concerning the identification, evaluation, or placement
of the particular child or any other allegation of a violation of Part C
or its implementing regulations from the jurisdiction of its State
complaint resolution system, or (2) advise or require parents to request
a due process hearing before the lead agency can initiate a complaint
investigation. A lead agency cannot deny a request for a due process
hearing because a State complaint was not first filed. Thus, whenever a
lead agency receives a signed written complaint that alleges that an
entity is violating a requirement under Part C, including any matter for
which parents could request a due process hearing, the lead agency,
subject to §303.512(b), must resolve the complaint within 60 calendar
days, using the procedures in §303.512 and outlined in Section I above.

In addition, the lead agency is to establish and implement procedures to
allow parties to resolve disputes through a mediation process that, at a
minimum, must be available whenever a due process hearing is requested.
(§303.419(a)). These procedures must ensure that the mediation process
is: (1) voluntary on the part of parties; (2) not used to deny or delay
a parent\'s right to a due process hearing, or to deny any other rights
afforded under Part C of the Act, including the right to file a
complaint and to resolve the complaint within 60 days; and (3) conducted
by a qualified and impartial mediator who is trained in effective
mediation techniques. (§303.419(b)(1)). The State bears the cost of
mediation, including meetings, and each session in the mediation process
must be scheduled in a timely manner and held in a location that is
convenient to the parties to the dispute. (§303.419(b)(3)-(4)). Any
agreement reached by the parties to the dispute in the mediation process
is to be set forth in a written mediation agreement. (§303.419(b)(5)).

If a signed written complaint is received that is also the subject of a
due process hearing under §303.420, 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. (§303.512(c)). However,
any issue in the complaint that is not a part of the due process action
must be resolved within the 60 calendar days using procedures described
in §303.512(a)-(b). If an issue is raised that has previously been
decided in a due process hearing involving the same parties, the hearing
decision is binding and the lead agency must inform the complainant to
that effect. Further, a complaint alleging an entity's failure to
implement a due process decision must be resolved by the lead agency.

######## QUESTION & ANSWERS ON PARTICULAR AREAS OF THE STATE COMPLAINT PROCEDURES

**[Question 1]{.underline}:** Who can file a State complaint?

**[Answer]{.underline}:** Not only a child's parent, but *any
organization or individual*, may file a signed written complaint that
includes: (1) a statement that an entity has violated a requirement of
Part C or its implementing regulations; (2) the fact(s) on which the
statement is based; and (3) an allegation of a violation that occurred
not more than one year prior to the date that the complaint is received,
subject to certain exceptions. ([See]{.underline} §303.511). This
requirement is different for a due process hearing, in which only a
parent may initiate a hearing. (§303.420).

**[Question 2]{.underline}:** When an organization or individual, other
than a parent, files a State complaint regarding early intervention
services for a specific child, how should a lead agency proceed?

**[Answer]{.underline}:** A lead agency is required to resolve
[any]{.underline} complaint that meets the requirements of §303.511,
including a complaint alleging that an entity has failed to provide
early intervention services to a child with a disability. Thus, the lead
agency would be required to follow the State complaint procedures
outlined in §303.512 as it would any other case where a violation of
Part C is alleged.

If a complaint is filed by someone other than the parent, the lead
agency may not provide personally identifiable information to the
non-parent complainant without parent consent. Under §§303.460 and
300.571(a)(1), parental consent must be obtained before personally
identifiable information is disclosed to anyone other than officials of
participating agencies collecting or using the information under Part C.

**[Question 3]{.underline}:** Can an issue(s) that is the subject of a
State complaint also be the subject of a due process hearing?

**[Answer]{.underline}:** Yes. As long as the issue(s) is an alleged
violation of Part C of the IDEA or its applicable regulations, and it
relates to the child\'s identification, evaluation, or placement of the
child, or the provision of early intervention services to the child and
the child's family, it could also be the subject of a due process
hearing. If this occurs, however, 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. Any issue in the complaint that is not a
part of a due process action must be resolved within the 60-calendar day
timeline, subject to §303.512(b), using the lead agency\'s complaint
resolution procedures. (§303.512(c)).

**[Question 4]{.underline}:** If a complainant has already filed a State
complaint which has not been resolved, can he or she still request a due
process hearing?

**[Answer]{.underline}:** Yes. Filing a State complaint does not prevent
complainants from requesting a due process hearing. In some cases, the
complaint may also be the subject of a due process hearing, or may
contain multiple issues of which one or more may be part of the hearing.
In those cases, 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 a
due process action must be resolved within the 60-calendar day timeline,
subject to §303.512(b), using the lead agency\'s complaint resolution
procedures. (§303.512(c)).

**[Question 5]{.underline}:** If a hearing officer rules on an issue(s)
raised by the parent in a due process hearing, is there any time in
which a subsequent complaint on the same issue may be filed?

**[Answer]{.underline}:** Section 303.512(c)(2) requires that if a
hearing officer has already ruled on an issue at a due process hearing,
the decision is final and binding. The lead agency must inform the
complainant that the hearing decision is binding. The lead agency must
use its State complaint resolution procedures to resolve any issue(s) in
the complaint that was not resolved in the hearing. In determining that
it will not resolve an issue in a complaint because that issue was
previously resolved in a due process hearing, the lead agency must
ensure that the legal and factual issues are indeed identical. Also, any
complaint alleging an entity\'s failure to implement the due process
decision is to be resolved by the lead agency. (§303.512(c)(3)).

**[Question 6]{.underline}:** Since a lead agency may not alter or
interfere with a decision rendered by a due process hearing officer, how
are situations handled when a subsequent complaint is filed with the
lead agency on similar issues?

**[Answer]{.underline}:** A lead agency may resolve an issue(s) raised
in a complaint by informing the complainant in writing that the specific
issue(s) has been decided in a due process hearing or subsequent
administrative or judicial proceeding. If an issue(s) raised in the
complaint is [similar]{.underline} to \-- but not the same as \-- the
specific issue resolved in a due process hearing, the lead agency may
not claim that the issue has been resolved in the hearing and must
proceed to resolve the issue through its complaint management
procedures. Similarly, if [some]{.underline} \-- but not all \-- of the
issues raised in the complaint have been resolved in a due process
hearing, the lead agency must use its complaint resolution procedures to
resolve any issue that was not resolved in the hearing. (§303.512(c)).

**[Questions 7]{.underline}:** Does a dispute in an IFSP meeting
regarding the appropriateness of early intervention services amount to
an allegation of a Part C violation which a lead agency must resolve if
a complaint is filed?

**[Answer]{.underline}:** Yes. Under the IDEA, the lead agency is
responsible for ensuring that early intervention services have been made
available to eligible infants and toddlers with disabilities. If a
parent believes that what is offered during an IFSP meeting to his or
her child with a disability does not constitute the early intervention
services necessary to meet the child's unique needs and files a
complaint, the lead agency must resolve the complaint.

A lead agency resolves a complaint challenging the appropriateness of a
entity\'s determination regarding a child\'s services or placement by
determining not only whether the entity has followed the required
procedures to reach that determination, but also whether the entity has
reached a decision that is consistent with Part C requirements in light
of the individual child\'s abilities and needs. Thus, the lead agency
would need to review the evaluation and assessments data in the child\'s
record and any additional data provided by the parties to the complaint
and the explanation included in the entity\'s notice to the parents as
to why the agency made the challenged determination regarding the
child\'s services or placement (and/or refused to make an alternative
determination). If necessary, the lead agency may need to interview
appropriate individuals, to determine: (1) whether the agency followed
procedures and applied standards that are consistent with State
standards, including the requirements of Part C, and (2) whether the
determination made by the entity is consistent with those standards and
supported by the data. The lead agency may likely find that the entity
has complied with Part C requirements if the agency has followed
required procedures, applied required standards, and reached a
determination that is reasonably supported by the child-specific data.

It is important to note that, although decisions of the IFSP team cannot
be overturned by the lead agency, the lead agency can, on a case-by-case
basis, if it concludes that what has been offered does not meet the
needs of the child, order the IFSP team to meet to determine appropriate
services for the child. In addition, parents always have the right to
challenge the IFSP team\'s decision by filing a due process hearing and
may seek to resolve their disputes through mediation.

**[Question 8]{.underline}:** After the resolution of a State complaint,
how must the lead agency report its findings?

**[Answer]{.underline}:** Each lead agency is required to issue a
written decision to the complainant that addresses each allegation in
the complaint and contains: (1) findings of fact and conclusions, and
(2) the reasons for the lead agency\'s final decision. (§303.512(a)(4)).
Further, to ensure corrective action, the lead agency must inform any
affected entities of any findings of noncompliance and the required
corrective action(s), and ensure that the corrective action is completed
within a reasonable period of time. In addition, failure to ensure that
the corrective action brings about compliance with the IDEA could result
in actions taken against the lead agency.

**[Question 9]{.underline}:** May a lead agency make mediation available
when a State complaint is filed?

**[Answer]{.underline}:** Yes. In the interest of building cooperative,
collaborative relationships with all parties involved in the education
of children with disabilities, in addition to making mediation available
when a due process hearing has been requested as required by Part C,
States are encouraged to offer mediation when a State complaint has been
filed. A lead [agency may not require]{.underline}, but may request,
that mediation take place before complaint resolution or a hearing. The
lead agency may not view the existence of ongoing mediation, in and of
itself, as exceptional circumstances under §303.512(b). However, if the
parties agree that the complaint resolution timeline should be extended
because of mediation, the lead agency may extend the timeline for
resolution of the complaint.

**[Question 10]{.underline}:** May a State complaint decision be
appealed?

**[Answer]{.underline}:** The regulations are silent as to whether a
state complaint decision may be appealed.

Part C neither prohibits nor requires the establishment of procedures to
permit either party to request reconsideration of a State complaint
decision.

Section 303.512 requires that the lead agency issue a final decision on
each complaint within 60 calendar days after the complaint is filed,
unless the lead agency extends the timeline because exceptional
circumstances exist with respect to the particular complaint. This means
that, absent an appropriate extension of the timeline for a particular
complaint, the State must issue a final decision within 60 calendar
days. If that decision requires corrective action (s), the
implementation of such corrective actions cannot be delayed pending any
procedures for reconsideration of the decision.

A State may choose to establish procedures for reconsideration of
complaint decisions that would result in a decision on the
reconsideration within 60 calendar days of the date on which the
complaint was originally filed. Alternatively, a State may establish
procedures for the reconsideration when the reconsideration process
would not be completed until later than 60 days after the original
filing of the complaint, but only if implementation of any corrective
actions required in the lead agency\'s final decision is not delayed
pending the reconsideration process.

However, if the issue(s) is still in dispute, the parent may, if he or
she has not already done so, initiate a due process hearing. A decision
made in a due process hearing is final. (See §303.423). However, in
states that use the Part C due process procedures (§303.419-.425), any
party aggrieved by the findings and decision in a due process hearing
has the right to bring a civil action in State or Federal court.
(§303.424). If a state has adopted the Part B due process procedures
(§300.500-.512), the appeal rights in those regulations apply. (See
§300.510(b) and §300.512(a)).

**[Question 11]{.underline}:** Under a State\'s complaint procedures,
what are remedies for the denial of early intervention services?

**[Answer]{.underline}:** In resolving a complaint in which there is a
finding of a failure by an entity to provide appropriate services, a
lead agency, through its general supervisory authority under Part C, is
required, as appropriate, to provide remedies for the denial of
services. The lead agency must address: (1) how to remediate the denial
of the services, including, as appropriate, the awarding of monetary
reimbursement or other corrective action appropriate to the needs of the
child and the child's family; and (2) appropriate future provision of
services for all infants and toddlers with disabilities. (§303.510(b)).

**[Question 12]{.underline}:** Must a State conduct an independent
onsite investigation for every complaint filed?

**[Answer]{.underline}:** No. A lead agency is required to conduct an
independent on-site investigation [only if]{.underline} it determines
that such an investigation is necessary. (§303.512(a)(1)).

**[Question 13]{.underline}:** May a lead agency's complaint
investigation determine the appropriateness of an eligibility
determination made by a entity?

**[Answer]{.underline}:** In resolving a complaint challenging the
appropriateness of a entity\'s eligibility determination, a lead agency
must determine not only whether the entity has followed the required
procedures to reach that determination, but also whether the entity has
reached a decision that is consistent with Part C requirements in light
of the individual child\'s abilities and needs. The lead agency must
determine whether the child was determined eligible based on evidence
that he or she met the definition of \"infants and toddlers with
disabilities\" under §303.16 and fell within the age ranges specified at
§303.16(a). To do so, the lead agency would need to review the
evaluation and assessment data in the child\'s record and any additional
data provided by the parties to the complaint. In addition, the lead
agency would need to review the explanation included in the entity\'s
notice to the parents as to why the agency made the challenged
eligibility determination (and/or refused to make an alternative
determination requested by the parents or others). If necessary, the
lead agency may need to interview appropriate individuals, to determine:
(1) whether the entity followed procedures and applied standards that
are consistent with State standards, including the requirements of Part
C, and (2) whether the entity\'s eligibility determination is consistent
with those standards and supported by the evaluation/assessment and
other data included in the child\'s record or the information provided
by the parties to the complaint. The lead agency may likely find that
the entity has complied with Part C requirements if the agency has
followed required procedures, applied required standards, and reached a
determination that is reasonably supported by the child-specific data
and is consistent with Part C.

**[Question 14]{.underline}:** When did the removal of the requirement
of Secretarial reviews take effect and what should a lead agency develop
in lieu of the Secretarial reviews?

**[Answer]{.underline}:** The new regulations, which removed the
Secretarial review requirement, took effect on May 11, 1999. Therefore,
OSEP is returning requests for Secretarial reviews received after that
date to the complainant. The final regulations do not require that a
State establish a procedure to replace Secretarial reviews.

**[Question 15:]{.underline}** How does a lead agency resolve a
complaint against its own self or its employees?

**[Answer:]{.underline}** The lead agency may either appoint its own
personnel to resolve the complaint, or may make arrangements with an
outside party to resolve the complaint. If it chooses to use an outside
party, however, the lead agency remains responsible for complying with
all procedural and remediation steps required under the regulations.

[^1]: Under §303.400(a), each lead agency is responsible for: (a)
    establishing or adopting the procedural safeguards that meet the
    requirements of Subpart E of Part C (§§303.400-460); and (b)
    ensuring effective implementation of the safeguards by each public
    agency in the State that is involved in the provision of early
    intervention services under Part C.

    Further, under §303.501(a), each lead agency is responsible for (1)
    the general administration and supervision of programs and
    activities receiving assistance under Part C; and (2) the monitoring
    of programs and activities used by the State to carry out Part C,
    whether or not these programs or activities are receiving assistance
    under Part C, to ensure that the State complies with Part C.