Question:

Can I file a due process hearing and/or complaint against a state education agency (SEA)?

Answer:

If your child has an Individualized Education Program (IEP), you can file a due process hearing and/or complaint against an SEA.

What Documents and/or Regulations Support this Answer?

March 13, 2024, U.S. Department of Education (USDOE) clarified this in a Differentiated Monitoring and Support (DMS) report for Virginia.

For years, parents in Virginia complained about the state's regulations being inconsistent with Individuals with Disabilities in Education Act (IDEA). This included language that placed restrictions on agencies that could have complaints and/or due process hearings filed against them. In Virginia, complaints and due process hearings were limited to local education agencies (LEA).

VDOE knew its regulations were inconsistent with IDEA and refused to change them.

Enter USDOE.

In its March 13, 2024, report, USDOE reminded VDOE that IDEA states due process hearings and complaints can be filed against agencies other than LEAs, reminded VDOE of the definition of "public agencies", provided required actions of VDOE, and cited IDEA to support its findings of VDOE's noncompliance.

The following is directly from OSEP's report:

State Complaints

Legal Requirements

Parties to a State Complaint

Under 34 C.F.R. § 300.151, the State must adopt written procedures for resolving any complaint, including a complaint filed by an organization or individual from another State, that meets the requirements of 34 C.F.R. § 300.153. Under 34 C.F.R. § 300.153, the complaint, among other requirements, must be in writing and signed and contain a statement alleging that a public agency has violated a requirement of Part B of the Act or the Part B regulations, including the facts on which the statement is based. (Emphasis added).

Under 34 C.F.R. § 300.33, the definition of public agency includes the SEA, LEAs, educational service agencies (ESAs), nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities.

Noncompliant Policy, Procedure, or Practice and OSEP Analysis

The State’s regulations and complaint procedures restrict the parties subject to the State complaint procedures. By using the term “LEA” or “school division,” individuals and organizations do not have notice that the IDEA complaint procedures are available to resolve allegations against not only LEAs, but also the SEA and other agencies included in the definition of public agency at 34 C.F.R. § 300.33.

“Complaint” as defined by the State in the State regulations, the Regulations Governing Special Education Programs for Children with Disabilities in Virginia, at 8VAC20-81-10, means a request that the SEA investigate an alleged violation by a “local educational agency.” (Emphasis added). The State’s regulation at 8VAC20-81-200.B.3 requires that a State complaint “contain a statement that a local educational agency has violated the
Act or these special education regulations.” (Emphasis added).

In its State complaint procedures, VDOE states that the purpose of the procedures is to provide, among other things, “an opportunity for school divisions and complainants to mutually resolve differences.” (Emphasis added). See Complaint Resolution Procedures (Revised Jan. 2022).

IDEA’s State complaint procedures are available to resolve allegations that a public agency violated a requirement of Part B of IDEA or its implementing regulations. (Emphasis added). IDEA defines public
agency to include the SEA, LEAs, ESAs, nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities. 34 C.F.R. § 300.33.

OSEP notes that the State’s procedural safeguards document properly states that the IDEA State complaint procedures may be used to file a complaint alleging a violation of any IDEA requirement “by a school division, the VDOE, or any other public agency.” See Your Family’s Special Education Rights (Sept.
2013), p. 17.

OSEP Conclusion/Finding

OSEP’s analysis is based on the documents and information provided by the State, and interviews with State staff and other interested parties. Based on this analysis, OSEP finds that:

The State’s regulations and State complaint procedures contain provisions that are inconsistent with 34 C.F.R. §§ 300.33 and 300.153(b). Specifically, the State’s regulations at 8VAC20-81-10 and 8VAC20-81-200.B.3 and its complaint procedures apply to “LEAs” or “school divisions” rather than to all of the entities listed under IDEA’s definition of “public agency” as required by 34 C.F.R. §§ 300.33 and 300.153(b).

Next Steps/Required Actions

Policies and Procedures—within 90 days of the date of this monitoring report, but not later than when the State submits its FFY 2024 IDEA Part B grant application the State must submit to OSEP:

1. A copy of VDOE’s State complaint procedures, revised to be consistent with the requirements in 34 C.F.R. §§ 300.33 and 300.153(b).

2. A specific written assurance from the State that shows—

(1) The State will revise its regulations at 8VAC20-81-10 and 8VAC20-81 200.B.3, as soon as possible but in no case later than one year from the date of OSEP’s 2024 DMS report, to ensure the regulations are consistent with the requirements in 34 C.F.R. §§ 300.33 and 300.153(b);

(2) The State will issue a memorandum or other directive, to all LEAs, parent advocacy groups, and other interested parties advising them of the changes proposed to the State regulations and State complaint procedures to ensure they are consistent with the IDEA requirements as described above and provide a copy to OSEP; and

(3) The State will comply with 34 C.F.R. §§ 300.33 and 300.153(b) throughout the FFYs 2023 and 2024 grant periods.

Evidence of Implementation—as soon as possible, but no later than one year from the date of this monitoring report the State must submit to OSEP:

1. A copy of the finalized changes to the State’s regulations and documentation of the revisions.

Due Process

Legal Requirements

Filing a Due Process Complaint

Under 34 C.F.R. § 300.507(a), a parent or a public agency may file a due process complaint on any of the matters described in 34 C.F.R. § 300.503(a)(1) and (2) (relating to the identification, evaluation, or educational placement of a child with a disability, or the provision of FAPE to the child). (Emphasis added). The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under Part B of the IDEA regulations, in the time allowed by that State law, except that the exceptions to the timeline described in
34 C.F.R. § 300.511(f) of the regulations apply. (Emphasis added).

Under 34 C.F.R. § 300.33, the definition of public agency includes the SEA, LEAs, ESAs, nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities.

Noncompliant Policy, Procedure, or Practice and OSEP Analysis

The State’s regulation and due process procedures restrict the parties subject to the due process complaint. By using the term “LEA” or “school division” individuals and organizations do not have notice that the IDEA due process procedures are available to resolve allegations against not only LEAs, but also the SEA and other agencies included in the definition of public agency at 34 C.F.R. § 300.33.

The State’s regulation at 8VAC20-81-210.A states:

The Virginia Department of Education provides for an impartial special education due process hearing system to resolve disputes between parents and local educational agencies with respect to any matter relating to: (22-214 of the Code of Virginia; 34 C.F.R. §§ 300.121 and 300.507 through 300.518)...(Emphasis added).

The State’s regulation and VDOE’s guidance document, Navigating the Maze of the Due Process Requirements, (Sept. 2020), state:

Either a parent(s) or the local school division (LEA) may file a request for a due process hearing when a disagreement arises regarding the identification of a child with a disability, evaluation of a child with a disability (including disagreements regarding payment for an independent educational evaluation), educational placement and services of the child, and the provision of a free appropriate public education. (Emphasis added). p. 2.

IDEA’s due process complaint and hearing procedures are available to resolve allegations that a public agency violated a requirement of Part B of IDEA or its implementing regulations. (Emphasis added). The term public agency as defined in 34 C.F.R. § 300.33, includes not only LEAs, but also the SEA and other agencies.

OSEP Conclusion/Finding

OSEP’s analysis is based on the documents and information provided by the State, and interviews with State staff and other interested parties. Based on this analysis, OSEP finds that:

The State’s regulation at 8VAC20-81-210.A and due process complaint procedures apply only to “LEAs” or “school divisions” rather than all of the entities listed under IDEA’s “public agency” definition as required by 34 C.F.R. §§ 300.33 and 300.507.

Next Steps/Required Actions

Policies and Procedures—within 90 days of the date of this monitoring report, but not later than when the State submits its FFY 2024 IDEA Part B grant application the State must submit to OSEP:

1. A specific written assurance from the State that shows—

(1) The State will revise its regulation at 8VAC20 81-210.A, as soon as possible but in no case later than one year from the date of OSEP’s 2024 DMS report to be consistent with the requirements in 34 C.F.R. §§ 300.33 and 300.507;

(2) The State will issue a memorandum or other directive to all LEAs, parent advocacy groups, and other interested parties advising them of the changes proposed to the State regulations and due process procedures and guidance to ensure they are consistent with the IDEA requirements as described above and provide a copy to OSEP; and

(3) The State will comply with 34 C.F.R. §§ 300.33 and 300.507 throughout the FFYs 2023 and 2024 grant periods.

Evidence of Implementation—as soon as possible, but no later than one year from the date of this monitoring report the State must submit to OSEP:

1. A copy of the finalized changes to the State’s regulation and documentation of the revisions.