Dated July 17, 2000

Contact Persons

Names: Camellia Wang

> JoLeta Reynolds

Telephone: (202) 205-5507

OSEP 00-20

**MEMORANDUM**

TO: Chief State School Officers

FROM: Kenneth R. Warlick

> Director
>
> Office of Special Education Programs

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

**INTRODUCTION**

The purpose of this Memorandum is to provide guidance on the State
complaint procedures that are set out at 34 CFR §§300.660-300.662 of the
final Part B 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 B of the Individuals with
Disabilities Education Act (Part B). For State complaint procedures
applicable to Part C of the Act, refer to OSEP Memorandum 00-21 being
issued at the same time as this memorandum.

Part B'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 educational
needs of their children are met and provide the State educational agency
(SEA) with a powerful tool to identify and correct noncompliance with
the IDEA and its implementing regulations.[^1] As part of its general
supervisory responsibility, an SEA must implement complaint resolution
procedures in a manner that meets the requirements of §§300.660-300.662
(see Section I). Because of the important role that effective State
complaint resolution plays for parents, public agencies, and the SEA in
meeting its general supervisory responsibility, each State's complaint
procedures are addressed in OSEP's continuous improvement monitoring
process. The State complaint procedures, which are under the direct
control of the SEA, have 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 public agencies.

This Memorandum is divided into three sections. Section I outlines the
State complaint procedures, focusing on the language of
§§300.660-300.662. Section II provides information regarding the
relationship between the complaint resolution and due process hearing
procedures in the Part B 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.

**I.** **[STATE COMPLAINT PROCEDURES]{.underline}**

The following is a description of the requirements for State complaint
procedures, as set out in §§300.660-300.662.

A. [Adoption of State Complaint Procedures; Filing a
Complaint]{.underline}. (§§300.660 and 300.662)

Generally, §300.660 requires each SEA to adopt written procedures for
resolving any complaint, including any complaint filed by any
organization or individual from another State, that meets the
requirements of §300.662 (see next paragraph). Under §300.660(a), these
procedures must \--

1.  Provide for the filing of a complaint with the SEA;

2.  At the SEA\'s discretion, provide for the filing of a complaint with
    a public agency, and the right to have the SEA 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
    §§300.660-300.662. Another section of the regulation,
    §300.504(b)(14), requires that the procedural safeguards notice that
    goes to individual parents includes a full explanation of the State
    complaint procedures including how to file a complaint and the
    timelines under those procedures.

As specified at §300.662(b)(1) and (2), an organization or individual
may file a signed written complaint that includes: (1) a statement that
a public agency has violated a requirement of Part B or its implementing
regulations; and (2) the facts on which the statement is based. Section
300.662(c) provides that a complaint must include an allegation that a
violation occurred not more than one year prior to date that the
complaint is received unless a longer period is reasonable because the
violation is continuing, or the complainant is requesting compensatory
services for a violation that occurred not more than three years prior
to the date the complaint is received under §300.660(a). Allegations of
violations outside of these time frames do not have to be accepted by
the SEA as complaints under §§300.660-300.662.

B. [Minimum State Complaint Procedures]{.underline}. (§300.661)

Each SEA, under §300.661(a), is required to include in its complaint
procedures a time limit of 60 calendar days after a complaint is filed
under §300.660(a) to --

1.  Carry out an independent on-site investigation, if the SEA
    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 public agency is violating a requirement of Part B;
    and

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

> a\. Findings of fact and conclusions, and
>
> b\. The reasons for the SEA\'s final decision.

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

-   Permitting an extension of the time limit under §300.661(a) only if
    exceptional circumstances exist with respect to a particular
    complaint (§300.661(b)(1)), and

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

**II. RELATIONSHIP BETWEEN THE STATE COMPLAINT RESOLUTION AND DUE
PROCESS HEARING SYSTEMS**

Under the Part B regulations, parents of children with disabilities have
two separate means available to them for resolving disputes with public
agencies concerning the education of their children \-- i.e., (1) the
State complaint resolution system required in §§300.660-300.662 (the
subject of this memorandum), and (2) the impartial due process hearing
system required in §§300.506-300.513. States also are required to have
mediation 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 §300.662,
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 public agencies over
any matter concerning the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public
education (FAPE) to the child, as well as any other allegation that a
public agency has violated Part B.

It is impermissible under Part B for an SEA to: (1) have a procedure
that removes complaints about FAPE or any other matter concerning the
identification, evaluation, or educational placement of the particular
child or any other allegation of a violation of Part B 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 SEA can initiate a complaint investigation.
Neither can an SEA deny a request for a due process hearing because a
State complaint was not first filed. Thus, whenever an SEA receives a
signed written complaint that alleges the public agency is violating a
requirement under Part B, including any matter for which parents could
request a due process hearing, the SEA, subject to §300.661(b), must
resolve the complaint within 60 calendar days, using the procedures in
§300.661 and outlined in Section I above.

In addition, the SEA 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.
(§300.506(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 B 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. (§300.506(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 must be held in a location that
is convenient to the parties to the dispute. (§300.506(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. (§300.506(b)(5)).

If a signed written complaint is received that is also the subject of a
due process hearing or contains multiple issues, of which one or more
are part of that hearing, the State must set aside the part of the
complaint that is being addressed in the due process hearing, until the
conclusion of the hearing. §300.661(c)(1). 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 §300.661(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 SEA must inform the complainant to that effect. §300.661(c)(2).
Further, a complaint alleging a public agency\'s failure to implement a
due process decision must be resolved by the SEA. §300.661(c)(3).

**III. 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 a public agency has violated a
requirement of Part B or its implementing regulations; (2) the fact(s)
on which the statement is based; and (3) an allegation of a violation
that did not occur more than one year prior to the date that the
complaint is received. (see §300.662). This requirement is different for
a due process hearing in *which only a parent (or a student exercising
rights that have transferred at the age of majority* (see §300.517*)) or
the public agency* may initiate a hearing. (§300.507(a)).

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

**[Answer]{.underline}:** An SEA is required to resolve
[any]{.underline} complaint that meets the requirements of §300.662,
including a complaint alleging that a public agency has failed to
provide FAPE to a child with a disability. Thus, the SEA would be
required to follow the State complaint procedures outlined in §300.661
as it would any other case where a violation of Part B is alleged.

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

**[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 B of the IDEA or its applicable regulations and it
relates to the child\'s identification, evaluation, or educational
placement or the provision of FAPE to the child, 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 part of the due process action must be
resolved using the time limit and procedures consistent with the State
complaint requirements.

**[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 State complaints 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
using the SEA\'s complaint resolution procedures, as described in
§300.661(a) and (b). (§300.661(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 300.661(c)(2) provides that if a
hearing officer has already ruled on an issue at a due process hearing,
the decision is final and binding. The SEA must inform the complainant
that the hearing decision is binding. The SEA 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 SEA must ensure that the legal
and factual issues are indeed identical. Also, any complaint alleging a
public agency\'s failure to implement the due process decision is to be
resolved by the SEA. (§300.661(c)(3)).

**[Question 6]{.underline}:** Since an SEA 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 SEA on
similar issues?

**[Answer]{.underline}:** An SEA 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 SEA 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
SEA must use its complaint resolution procedures to resolve any issue
that was not resolved in the hearing. (§300.661(c)).

**[Question 7]{.underline}:** Does a dispute in an IEP meeting regarding
the appropriateness of FAPE determinations made by a public agency
amount to an allegation of a Part B violation which an SEA must resolve
if a complaint is filed?

**[Answer]{.underline}:** Yes. Under the IDEA, the SEA is responsible
for ensuring that FAPE has been made available to children with
disabilities. If a parent believes that what is offered during an IEP
meeting to his or her child with a disability does not constitute FAPE
and files a complaint, the State must resolve the complaint.

An SEA resolves a complaint challenging the appropriateness of a public
agency\'s determination regarding a child\'s educational program or
placement by determining not only whether the public agency has followed
the required procedures to reach that determination, but also whether
the public agency has reached a decision that is consistent with Part B
requirements in light of the individual child\'s abilities and needs.
Thus, the SEA would need to review the evaluation data in the student\'s
record or any additional data provided by the parties to the complaint
and the explanation included in the public agency\'s notice to the
parents as to why the agency made the challenged determination regarding
the child\'s educational program or placement (and/or refused to make an
alternative determination). If necessary, the SEA 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 B, and (2) whether the
determination made by the public agency is consistent with those
standards and supported by the data. The SEA may likely find that the
public agency has complied with Part B requirements if the agency has
followed required procedures, applied required standards, and reached a
determination that is reasonably supported by the student-specific data.

Although decisions of the IEP team cannot be overturned by the SEA, the
SEA can, on a case-by-case basis, if it concludes that what has been
offered does not meet the definition of FAPE, order the IEP team to meet
to determine FAPE for the child. In addition, parents always have the
right to challenge the IEP team\'s decision by filing for 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 SEA report its findings?

**[Answer]{.underline}:** Each SEA 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 SEA\'s final decision. (§300.661(a)(4)). Further, to
ensure corrective action, the SEA must inform the public agency 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 SEA.

**[Question 9]{.underline}:** May an SEA 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, States are encouraged to offer mediation
when a State complaint has been filed, as well as when a due process
hearing has been requested. An SEA may not [require]{.underline}, but
may request, that mediation take place before complaint resolution or a
hearing. The SEA may not view the existence of ongoing mediation, in and
of itself, as exceptional circumstances under §300.661(b). However, if
the parties agree that the complaint resolution timeline should be
extended because of mediation, the SEA 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 B neither prohibits nor
requires the establishment of procedures to permit either party to
request reconsideration of a State complaint decision.

Section 300.661 requires that the SEA issue a final decision on each
complaint within 60 calendar days after the complaint is filed, unless
the SEA 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 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 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 SEA\'s final decision is not delayed pending the reconsideration
process.

However, if the issue(s) is still in dispute, the parent or public
agency may, if they have not already done so, initiate a due process
hearing. A decision made in a due process hearing is final. However, any
party to the hearing may appeal the decision to the SEA if the hearing
was conducted by a public agency other than the SEA. (§300.510(b)).
Under §300.512, any party aggrieved by the findings and decision made by
a due process hearing officer under §300.507 or the discipline
procedures at §§300.520-300.528 and who does not have the right to
appeal under §300.510(b) has a right to bring a civil action with
respect to the complaint.

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

**[Answer]{.underline}:** In resolving a complaint in which there is a
finding of a failure by a public agency to provide appropriate services,
an SEA, through its general supervisory authority under Part B, is
required, as appropriate, to provide remedies for the denial of
services. The SEA 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 (2) appropriate future provision of services for all children
with disabilities. (§300.660(b)).

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

**[Answer]{.underline}:** No. An SEA is required to conduct an
independent on-site investigation [only if]{.underline} it determines
that such an investigation is necessary. (§300.661(a)(1)).

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

**[Answer]{.underline}:** In resolving a complaint challenging the
appropriateness of a public agency\'s eligibility determination, an SEA
must determine not only whether the public agency has followed the
required procedures to reach that determination, but also whether the
public agency has reached a decision that is consistent with Part B
requirements in light of the individual child\'s abilities and needs.
The SEA must determine whether the child was determined eligible based
on evidence that he or she met the definition of \"child with a
disability\" under §300.7 and fell within the age ranges specified at
§300.300. To do so, the SEA would need to review the evaluation data in
the student\'s record or any additional data provided by the parties to
the complaint. In addition, the SEA would need to review the explanation
included in the public agency\'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 SEA may need to interview appropriate individuals, to
determine (1) whether the public agency followed procedures and applied
standards that are consistent with State standards, including the
requirements of Part B, and (2) whether the public agency\'s eligibility
determination is consistent with those standards and supported by the
evaluation and other data included in the student\'s record or the
information provided by the parties to the complaint. The SEA may likely
find that the public agency has complied with Part B requirements if the
agency has followed required procedures, applied required standards, and
reached a determination that is reasonably supported by the
student-specific data and is consistent with Part B.

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

**[Answer]{.underline}:** The regulations 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 an SEA resolve a complaint
against its own self or its employees?

**[Answer:]{.underline}** The SEA 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 SEA remains responsible for complying with all procedural
and remediation steps required under the regulations.

[^1]: Under §300.600(a), each SEA is responsible for ensuring that: (1)
    the requirements of Part B are carried out; and (2) each educational
    program for children with disabilities administered within the
    State, including each program administered by any other State or
    local agency---

    Is under the general supervision of the persons responsible for
    educational programs for children with disabilities in the SEA; and

    Meets the education standards of the SEA (including the requirements
    of Part B).