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Last Updated: 10/31/2017
 

IEP Issues - Complaints

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Free Online Course: The Importance of Filing Written Complaints with Reed Martin, J.D. - Reed Martin is an attorney with over 35 years experience in special education law and recognized as one of the nation's leading experts.

 

What Is the Process in Michigan for Filing a Special Education Formal Complaint? - In February 2003, the Michigan Department of Education (MDE), Office of Special Education and Early Intervention Services (OSE/EIS) released revised procedures for filing complaints regarding special education. This FOCUS on Results document answers frequently asked questions about filing special education complaints and gives some background for the revisions in the complaint procedures. Editor's Note: The OSE/EIS is providing information in this feature with a reminder that each due process hearing decision and each complaint investigation decision is based solely on factual circumstances, as presented in individual cases. Specific cases presented here should not be the basis of generalizations about dispute resolution. Printable PDF Version - click here.

 

Investigating Special Education Complaints (Michigan): An Update - click here for original PDF or see below for text of document.

Michigan Dept. of Education, June 9, 2003

 
There are 4 basic reasons that complaint investigations have changed since October of 1999 (the date that the MDE published the previous Complaint Procedures document):

 
1. In the fall of 2000, the U. S. Department of Education, Office of Special Education Programs (OSEP) initiated the Continuous Improvement Monitoring Process (CIMP) in Michigan. OSEP identified management of complainant investigations as a priority

 
2. As required by OSEP, the OSE/EIS submitted a copy of the MDE Complaint Procedures (October of 1999) to the OSEP as an attachment to Michigan’s application for federal funds. In the spring of 2001, the OSEP completed a review of that document and informed the OSE/EIS about required changes

 

3. In the summers of 2000 and 2002, OSE/EIS compliance staff participated in multistate training opportunities provided by the Mountain Area Regional Resource Center (RRC) the Great Lakes Area RRC

 
4. The MDE has been involved in several court actions that related to specific complainant investigations and/or to the OSE/EIS management of complaint investigations

 
The new Complaint Procedures document (approved during February of 2003) revises the previous document. The revised document:


1. Is reorganized to proceed more topically and sequentially


2. Identifies “public agency” to mean public school academies and various state agencies


3. Aligns the definition of a formal complaint with the terminology required by OSEP in revised Rule 340.1701a(c). The revised definition of a formal complaint:  a. Clarifies that minimally a complaint must be in writing and must be signed; b. Clarifies requirements related to who can file complaints; c. Clarifies that the scope of complaints can include multiple students and “systems issues” See: Systemic Complaints; d. Removes previous limitations related to “specific” and “uncorrected”

 
4. Introduces a new section identified as “Initial Investigation Procedures” that governs the ISD-OSE/EIS interface when a complaint is filed. This new section: a. Emphasizes that the ISD investigation must be “independent” See: Independent IR; b. Describes the process if the complainant requests a direct state investigation; c. Adds mediation as an option; d. Emphasizes requirements for the investigator to assist the complainant to clarify concerns, add allegations and have additional opportunities to provide information orally and/or in writing; e. Adds information about state agencies

 
5. Introduces the complaint/due process-hearing interface as a separate heading. This heading: a. Incorporates more detailed IDEA terms to describe several options; b. Clarifies responsibilities

 
6. Expands requirements related to timelines in order to: a. Identify when the timeline begins and ends See: Timeline; b. Requires OSE/EIS and ISD to fax the complaint within a timeline; c. Replaces previous terminology with “final report” and “exceptional circumstances” to be consistent with IDEA

 
7. Introduces a new section identified as “Intermediate School District Investigation Process” to re-organize and consolidate requirements related to ISD investigations. This new section: a. Adds an explicit requirement that each complaint results in an investigation report; b. Reiterates the investigator’s responsibility to establish direct contact with the complainant See: Essential Elements IR; c. Identifies the investigator’s FERPA authority; d. Requires the investigation report to attach the documents referenced; e. Adds a requirement to develop recommendations for denial of services; f. Deletes previous information on handling additional violations; g. Expands information on OCR


8. Introduces a new Section III to identify the OSE/EIS responsibilities when directing corrective action. The new Section III: a. Clarifies that an OSE/EIS directive for corrective action is a “final decision”; b. Deletes the requirement that the district found to be in violation must submit a “position statement” or a “corrective action plan”; c. Adds options for correcting violations; d. Requires the district to submit a copy of the proof of compliance to the ISD; e. Incorporates various requirements related to correcting violations, including compensatory education and the joint submission requirement


9. Introduces a new Section IV to identify the OSE/EIS responsibilities when conducting a state investigation. The new Section IV: a. Clarifies that the OSE/EIS investigation is held to the same standards as ISD investigations with respect to offering the complainant opportunities to provide additional information orally and/or in writing and issuing an independent investigation report; b. Clarifies the OSE/EIS procedures for managing new allegations raised on appeal; c. Clarifies the OSE/EIS authority to remand an ISD investigation report to the ISD for re-investigation if the ISD investigation report is deficient Major points include:

 

1. If the timelines do not improve, Michigan’s complaint investigation process will likely have to change to increase efficiency (1-tier v 2-tier)

 

2. MP&AS was sufficiently upset with the state’s management of the complaint investigation process that it filed a lawsuit, with a preferred remedy of having the judge take over management of the complaint system

 

3. The critical elements in good complaint investigations have not changed: accuracy, thoroughness, independence, clarity, documentation and timeliness

 

4. A word to the wise: contact the case manager if a sounding board is needed

 

Consistent with the MDE Complaint Procedures (February of 2003) and Section 300.661(a)(1)(3) of the IDEA final regulations, the investigator is responsible for issuing an investigation report that is “independent.” “Independent” is not precisely defined in any regulation, but it arguably means more than simply not having administrative authority over the program against which the complaint is filed. A review of a recent complaint case provides some guidance:

 

1. The parent filed a complaint with multiple allegations. One allegation was that the student’s general education teacher and special education paraprofessional excluded a student with disabilities from an extracurricular activity. The ISD investigator contacted the parent and clarified the allegations, including the allegation about the exclusion. The ISD investigator reviewed the IEP and other documents

 

2. The ISD investigator scheduled a meeting with the teacher and paraprofessional to interview them about the exclusion. When the ISD investigator arrived, the superintendent was present. The superintendent informed the ISD investigator that he wanted to sit in on the interviews on the advice of the district’s attorney. The ISD investigator asked the teacher and the paraprofessional if they were comfortable with the superintendent present. They responded that they were comfortable and the ISD investigator proceeded to interview them. During the interview, the superintendent clarified some of the answers the teacher and the paraprofessional provided to the ISD investigator. Based on the information provided by the teacher and the paraprofessional, the ISD investigation report found that the district did not violate any standards related to the allegation that the district excluded the student from an extracurricular activity

 

3. The parent requested a state investigation of the allegation about the exclusion from the extracurricular activity. The parent also raised a new allegation that the superintendent’s participation in the interviews influenced the responses of the teacher and the paraprofessional. The OSE/EIS investigator contacted the parent to clarify the appeal. The parent stated that the superintendent had never been directly involved in any IEPT meetings and had never observed the student, and his attendance at and participation in the interviews compromised the responses of the teacher and paraprofessional

 

4. As part of its investigation of the appealed allegation, the OSE/EIS investigator interviewed the general education teacher about the student’s participation in the extracurricular event. The teacher’s description of the circumstances to the OSE/EIS investigator differed from the description she provided to the ISD investigator. Based partially on that changed testimony, the OSE/EIS reversed the ISD finding and found the district in violation for excluding the student from the activity

 

5. As part of its investigation of the new allegation, the OSE/EIS investigator interviewed the ISD investigator. The ISD investigator, who had conducted numerous ISD investigations, stated that she was so surprised by the superintendent’s attendance that she was unsure how to proceed, but allowed him to attend after the staff clarified that they were comfortable with his attendance. She also indicated that, with the benefit of hindsight, she should not have allowed the superintendent to participate in the interview. The OSE/EIS investigator also interviewed the superintendent. The superintendent stated that he had never been a member of the student’s IEP team, that he attended the interview upon the advice of the district’s attorney because the parent had raised concerns about the student’s program, and that his purpose was to clarify the district staff’s comments

 

6. The OSE/EIS concluded there was no violation in the new allegation. In the rationale for the decision, the OSE/EIS noted the following: a. In reviewing the MDE Complaint Procedures (10/99), OSEP required that that document be revised to provide a clearer articulation that complaint investigations would be independent; b. The in-draft new Complaint Procedures required the ISD investigator to be responsible for conducting an independent investigation; c. There is no clear standard as to what constitutes an “independent investigation,” but with the responsibility to conduct an independent investigation comes the duty and the authority to establish the conditions under which information is gathered, including who is present during interviews; d. The ISD investigator allowed the superintendent to participate; e. The appropriate process to follow if the complainant disagrees with the ISD investigation is to request a state investigation, which the complainant did do; f. The superintendent was not present when the OSE/EIS interviewed the teacher. Her testimony changed and the OSE/EIS reversed the ISD conclusion in the appealed allegation
 

Resolving complaints within the 60-calendar-day time (identified in Section 300.660(a)(b)) has historically been problematic in Michigan. Michigan’s failure to improve the timelines has become a point of emphasis through 2 overlapping activities. The primary focus on timelines has occurred through the continuous improvement monitoring process (CIMP) that the U.S. Department of Education Office of Special Education Programs (OSEP) initiated with various states, including Michigan, in the fall of 2000. A secondary focus on this problem emerged when the Michigan Protection and Advocacy Services (MP&AS) initiated a lawsuit in federal district court in June of 2001, which raised a variety of allegations related to Michigan’s system for managing complaints, including the timelines for resolving complaints. The OSE/EIS readily acknowledged in the lawsuit that the state was not in compliance with the timeline, but the OSE/EIS argued that this problem was already being addressed through the CIMP activity. Because the CIMP activity preceded the lawsuit (which MP&AS recently withdrew) and all of the recommended changes that relate to timelines have come through the CIMP activity, the remainder of this review of timelines will focus solely on the CIMP activity.

 

When the OSEP initiated the CIMP activity with the OSE/EIS, one of the targeted areas of concern related to the timelines for resolving complaints. Through the CIMP activity, the OSE/EIS established a steering committee involving parents, advocates, attorneys, school district personnel, and personnel from other government agencies. Using a complex, interactive process the CIMP requested data and then used that data to understand, over time, the various root causes related to dispute resolution and to recommend various initiatives. Part of the CIMP activity requires the OSE/EIS to:

 

1. Identify expected outcomes that can be measured

 

2. Develop strategies to reach the outcomes


3. Measure the effectiveness of the strategy


4. Adjust as needed.


In response to the CIMP activity (and the changes OSEP required related to revising regulations related to complaint procedures), the OSE/EIS:


1. Revised the Complaint Procedures

 

2. Revised its internal operating procedures, including developing: a. Criteria to identify the beginning and ending dates of a complaint investigation; b. Criteria to identify the exceptional circumstances and complicating factors that support an extension of a timeline; c. Criteria to describe why an investigation report was not completed within a timeline; d. A process to identify which ISDs do not complete investigations within the 21-calendar day timeline


3. Made a commitment to study the efficacy of a 1-tier v a 2-tier complaint process


As part of the CIMP activity, the OSE/EIS submitted data semi-annually on timelines related to complaint investigations, as follows:


1. During the baseline period (1/1/99-12/18/00), the data indicated that 53.4 % of complaints were resolved within the timeline


2. During 2002 (1/1/02-11/30/02), compliance increased from 60.2% to 74.2%, suggesting continuous improvement)


3. During the period from 8/1/02-11/30/02: a. The OSE/EIS closed 97 cases; b. 72 were closed within the 60-calendar day timeline and 25 exceeded the timeline; c. The most frequent variable (N=11) to explain why a case went over the timeline is that the ISD did not complete the investigation in 21 calendar days

 

In late 2002, the OSEP expressed concern with the slow rate of improvement in data related to timelines and requested that data be submitted quarterly. In the first quarterly report that the OSE/EIS submitted (12/1/02- 2/28/03):


1. Compliance with the timeline has regressed to 67.3%


2. The regression is primarily due to the increased numbers of requests for state investigations, the ISDs exceeding the 21-calendar day timeline without cause, the increased complexity of allegations, and the inability to hire new complaint investigators


3. The overall improvement of data from the baseline level to the present is due largely to understanding available options and consistently applying those options

 

In the previous 3 years, a number of complaints have been filed that have alleged a violation(s) related to:


- All students in one special education program (e.g., all of the students in an EI program) operated by a single school district/ISD


- All students in one type of special education program (e.g., all EI programs) operated by a school district/ISD


- All students in several types of special education programs (e.g., all EI, LD and RR programs) operated by a school district/ISD


- All students at a building level (e.g., all students with disabilities at middle school(s)) operated by a school district/ISD


- All students by a specific disability (e.g., all AI students) in a building operated by a school district/ISD, or across a school district/ISD, or across a geographic area encompassing multiple school districts/ISDs - All students with disabilities in a specific public school academy (PSA)

 

- All new referrals for special education evaluations in a district during a given year

 

Managing investigations of “systems complaints” has evolved. Several significant points have emerged:


1. A complaint does not have to identify a specific student in order to be investigated


2. Section 300.661(a)(4)(i) requires that each state’s complaint procedures include a written report that includes findings of fact; each complaint must be investigated and the investigation must be documented in a written report

 

3. Each complaint must be reviewed based on the factual circumstances presented by the complainant; there is no single way to manage systemic complaints

 

4. Section 300.662(b)(2) requires the complainant to identify the facts on which the complaint is based

 

5. The investigator must attempt to discover other relevant factual information and document the attempts (professional judgment)

 

6. The investigator must provide the complainant with additional opportunities to provide additional factual information and document the opportunities

 

7. Reviewing previous monitoring reports and previous due process hearing decisions can sometimes provide relevant factual information

 

8. If the complainant is unable to provide sufficient factual information to substantiate a violation, and/or the investigator is unable to discover additional factual information to substantiate a violation, the investigator would likely conclude there was insufficient evidence to conclude a violation.

 

9. The decision whether the complainant has provided sufficient factual information lies with the investigator

 

 

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