By Amanda Glass, Equal Justice Works Fellow

Our last special education blog post discussed the process for filing a state complaint with the Arizona Department of Education (ADE). Today, we will talk about the types of disputes that a state complaint is best suited to address and what resolving a state complaint might look like.

What Kinds of Disputes Are Best Resolved Through a State Complaint?

The state complaint system is designed to investigate violations of Part B of the Individuals with Disabilities Education Act (IDEA).  ADE does not investigate violations of other laws, such as Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, or the Family Educational Rights and Privacy Act. ADE addresses procedural rather than substantive IDEA violations.

What Is the Difference Between a Procedural and Substantive Violation?

For deciding which type of conflict resolution to use, a procedural violation is when the school did not comply with some procedure, process or rule that is required under the IDEA or did not provide the special education, related services, supplementary aids and services or placement listed in a current Individualized Education Program (IEP).

Substantive violations are about the substance of a student’s program:

• does the student qualify for special education?
• what combination of special education and related services provide FAPE?
• what is the least restrictive environment (LRE)?
• whether the child’s conduct is a manifestation of their disability?

Disagreements about substance do not have an objective answer that can be identified through a state complaint investigation, and so must be addressed through mediation or a due process complaint (which will be discussed starting with tomorrow’s blog post).

Examples of Disputes Well-Suited to a State Complaint

Alex’s IEP states that he will receive 30 minutes of speech therapy per week. Alex’s school’s speech therapist was out on maternity leave for the first 3 months of school, and Alex received no speech therapy for three months.

• This dispute about whether the school provided the agreed upon amount of speech therapy in the IEP is well-suited to a state complaint. An investigator from ADE can review Alex’s special education records and interview school staff and parents to determine whether or not Alex received the services outlined in his IEP. If he has not, then Alex’s school is out of compliance with IDEA, and the investigator has the authority to order corrective action.

Bethany qualifies for special education under the category of Autism. One day during a school assembly, her behavior escalated and she began screaming. When school staff approached to calm her down, she kicked, scratched, and bit them, but did not cause anyone a serious injury. These behaviors were considered a violation of the student code of conduct and the school principal decided to discipline Bethany with a 20-day out-of-school suspension. The school did not hold a meeting to determine if the behavior was a manifestation of her disability and did not provide any of the services from Bethany’s IEP while she was suspended.

• This dispute about whether the school violated IDEA’s rule about manifestation meetings and alternative services is well-suited to a state complaint. An investigator from ADE can review Bethany’s special education records and interview school staff and parents to determine whether the school should have held a manifestation determination meeting for Bethany before going forward with the 20-day suspension, and if there was a finding that Bethany’s behavior was not a manifestation of her disability and the out-of-school suspension proceeded, whether Bethany should have been provided with services in an interim alternative education setting. If the ADE investigator finds that Bethany’s school has committed a procedural violation of IDEA, the investigator can order corrective action.

Charlie gets good grades in his reading and writing classes, but is failing his math class. Charlie’s parents suspect he may have a processing disorder related to math. They submitted a written request to Charlie’s school asking that Charlie be evaluated for special education eligibility. Charlie’s school has not responded to this request, and it has been over a month since the request was submitted.

• The dispute about whether the school has violated any rules about completing a timely evaluation is well-suited to a state complaint. An investigator from ADE can review Charlie’s school records and copies of written communications between Charlie’s parents and the school to determine whether the school has taken too long to respond to Charlie’s parents’ request in violation of IDEA. If a violation occurred, the investigator can order corrective action.

Dana is a child with an emotional disability. Her school has placed her in a special program for children with emotional disabilities where she is in a small classroom with a high teacher-to-student ratio, but where she never has the opportunity to interact with nondisabled students. Dana’s parents believe Dana could be successful in a regular education classroom if given the appropriate supports, such as a 1-on-1 aide and a strong behavior intervention plan. Dana’s parents do not believe her current placement is the least restrictive environment (LRE) appropriate to meet her needs, but the school disagrees.

• The dispute about what the LRE is for Dana is notwell-suited to a state complaint. This is a substantive dispute that will require evidence from both sides to be presented to a fact-finder, who will have to make a determination about what the LRE is for this student. This is not a case of an objective violation of IDEA that can be identified by an ADE investigator. Dana’s parent can ask for mediationor due process, which we will discuss further in our next two blog posts.

Opportunity for Mediation Before Formal Investigation of ADE Complaint 

When a state complaint is filed, ADE will encourage the parties to the complaint to resolve the complaint informally if possible. Mediation will be offered as an opportunity for an informal resolution.

If attempts to informally resolve the complaint are unsuccessful, the complaint investigation process will continue as described in our previous blog post. If informal resolution is successful, the complainant should notify ADE in writing that the complaint is withdrawn.

Mediation represents an opportunity for the complainant to be involved in crafting the resolution to the complaint. If a complaint continues to investigation, although ADE may ask the complainant for input, it is ADE that ultimately decides what corrective action will be ordered. On the other hand, if a complainant is willing to engage in informal dispute resolution, like mediation, the complainant will have greater power in deciding what they would like the school to do in order for them to withdraw their complaint. For ideas of what you might ask for when trying to resolve a state complaint, see our future blog post on remedies.

For additional information about the state complaint system, read ADE’s Frequently Asked Questions. You may also learn more from theCenter for Parent Information and Resources, and ACDL’s Special Education Self-Advocacy Guide.

In our next blog post, we will begin to explore the due process complaint system. We will go over what due process is, discuss when to use the due process complaint system, and outline how to submit a due process complaint.

Tomorrow’s Tip-of-the-Day: Special Education Due Process Complaint

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