March 30, 2023, United States Department of Education (USDOE) publicly released two new policy letters:
POLICY LETTER: March 2, 2023, to Oettinger
This letter is in response to questions I asked about the rights of students who have graduated:
- Must a State educational agency (SEA) resolve a complaint that meets the requirements of 34 C.F.R. § 300.153 if the child who is the subject of the complaint has graduated?
- Must an SEA resolve a complaint that meets the requirements of 34 C.F.R. § 300.153 if the complainant is alleging systemic noncompliance based on facts related to a child who has graduated?
USDOE concluded the following:
An SEA must accept and resolve a State complaint filed on behalf of a child who has graduated, so long as the complaint meets the requirements of 34 C.F.R. § 300.153, including the requirement that the alleged violation occurred not more than one year prior to the date that the complaint is received. Similarly, systemic issues that are the subject of a State complaint filed with the SEA that are based on facts related to a child who has graduated must be resolved using the State’s complaint resolution procedures, provided the complaint meets the requirements of 34 C.F.R. § 300.153, including the requirement that the alleged violation occurred not more than one year prior to the date that the complaint is received.
In addition, USDOE provided two examples for guidance.
Example 1: A parent alleges that their child, who graduated with a regular high school diploma within the previous calendar year, was not provided the transition services included in the child’s IEP. To resolve this complaint, the SEA reviews data provided by the parties to the complaint and the child’s record and interviews appropriate individuals to determine whether the public agency complied with the IDEA requirements. Based on its review, the SEA makes an independent determination and concludes that the LEA did not fully implement the transition services included in the child’s IEP. Consistent with 34 C.F.R. § 300.151(b), the SEA addresses the failure to provide appropriate services, including relief appropriate to remedy or redress the needs of the child (such as compensatory services2 or monetary reimbursement).
Example 2: On June 30, 2022, the parent files a State complaint that alleges that the public agency fails to provide parents with sufficient notice in advance of IEP meetings, including for a May 27, 2022, IEP Team meeting held for their child who graduated on June 15, 2022. The parent reports in their complaint that despite the public agency’s failure to provide them with notice as required by 34 C.F.R. § 300.322(a)(1), they were able to attend the meeting. In this circumstance, there would likely be no remedy required for the child related to the alleged violation, since the parent attended the IEP Team meeting. However, the SEA must resolve the systemic allegation in the complaint and make an independent determination about whether proper implementation of the IDEA requirement was occurring. If the SEA confirms the public agency was not complying with the notice requirement, it must order corrective actions for the public agency to ensure that the violations do not reoccur and the requirement is properly implemented.
USDOE’s second example addresses one of the problems with the Virginia Department of Education’s (VDOE) complaint process, too. After a local education agency (LEA) has engaged in noncompliance, SEA’s must address the noncompliance even if there is no resolution needed. For example, in USDOE’s second example, the parent attended the meeting, but that doesn’t change the fact that the LEA engaged in noncompliance.
Another example: During the 2019-20 school year, I advised Fairfax County Public Schools (FCPS) that it couldn’t charge a computer fee to students who are provided computers as part of their IEP or 504 Plans. Initially, FCPS came back and said that its counsels said it could charge those fees. I pointed out the error in this and FCPS conceded, and then took about seven months to return the $20,000+ it collected from students who receive computers in their IEPs or 504 Plans. I filed a complaint with VDOE, concerned that 1) FCPS’s counsels incorrectly advised it to engage in noncompliant activities; 2) district leadership didn’t know IDEA or Section 504 or implementing state regs well enough to identify this problem themselves; 3) the district took a long time to return money that it had been quick to collect, and use as a way to deny students participation in school activities if they didn’t pay; and 4) showed upon its attempts to return the fees that it didn’t have a credible tracking system in place. Initially, it failed to address students who have 504 Plans and missed students who have IEPs, too.
VDOE’s response was to let FCPS off the hook and refuse to investigate. VDOE stated that FCPS’s return of the money showed that the issue had already been resolved. As a side note: Later that year, VDOE refused to investigate FCPS and/or hold it accountable for some of the very issues Office for Civil Rights (OCR) found FCPS in noncompliance for between 2020–2022. Evidently, FCPS’s noncompliance had continued full steam ahead.
POLICY LETTER: March 17, 2023, to Nix
Letter to Nix clarifies the requirements and responsibilities of State lead agencies, local educational agencies (LEAs) and State educational agencies (SEAs) for ensuring eligible children with disabilities receiving early intervention services under IDEA Part C experience a smooth and effective transition to receiving preschool services under IDEA Part B. Letter to Nix addresses early childhood transition requirements related to transition plan, transition notification, transition conference, referral and late referrals, and reporting responsibilities.
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