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The Importance of Filing Written Complaints with Reed Martin, J.D.
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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.
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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