Complaints

Experienced parent advocate Pat Howey of West Point, Indiana, writes on the subject of the efficacy of filing complaints in special education matters in Indiana.

She writes: I rarely file complaints and even more rarely advise parents to file complaints. Why? Because in Indiana, there is no legitimate remedy, even when the school is found to be in violation.

I have had countless parents and advocates call me to excitedly tell me that they had "won" a complaint. My usual response is, what did you "get"? After a few seconds of silence, they say that the school has been ordered to change what they are doing and provide documentation to the state that they have completed the change.

If the complaint involved a violation that involved a service, such as failure to provide an extended school year or failure to provide a related service that is already in the child's IEP, the state very, very, rarely orders that it be provided. The state orders the school to convene an IEP team meeting to determine whether its violation caused the child a denial of FAPE. If so, then the IEP team is ordered to provide an appropriate amount of compensatory education.

So, what the parents have achieved is this:

1. The school cleans up its act -- on paper -- at the order of the state. In reality, nothing ever changes, because the school now knows what the state requires in the way of documentation. Therefore, it is rare that any other parent will ever "win" this issue again, because the parent who filed the complaint has taught the school what it needs to do in order to cover up what it is doing in practice. The state looks at the school's documentation, not its actual practices. (Remember, if it wasn't written down, it didn't happen. However, if it was written down, it did happen, even if it didn't.)

2. The parent "wins" another IEP team meeting. Because the parent is already entitled to convene an IEP meeting at almost any time, they have really not "won" anything. The state has given them what they are already entitled to have.

3. It is likely that the parent has already been to numerous IEP team meetings unsuccessfully attempting to resolve the issue that caused the complaint to be filed to begin with. So, in this case, what the parent has "won" is another case conference that the school will invite even more staff members to, and the school now knows how to document the meeting. If the complaint was about failure to provide a related service, you can be assured that the service provider will be invited to the meeting and that he or she will be instructed to find a reason why the child no longer needs that services. In that case, the child has not been deprived of FAPE and the team will find no need to provide compensatory educational services.

4. Last and most important of all, if you file a complaint, you will more than likely either lose the ability to ever bring that same issue before a hearing officer in a hearing and if you "lose" the complaint, the hearing officer will most likely defer to the findings of the complaint investigator.

The moral of this story is, before you file a complaint, be very, very certain that you will not EVER want to file for a hearing on the same issue. But even more importantly, examine closely what you could possibly "win" if you win the complaint. If your state offers no real remedy, then you may wish to consult an attorney before taking any action. Likewise, advocates should be very, very careful before filing a complaint on behalf of a parent, as you may be jeopardizing their future rights and remedies.

I use the state complaint system rarely and I tend to choose carefully those occasions when I utilize it.

First, the issue must be a direct violation of sped law. Second, I have to have direct knowledge and/or evidence of the violation (no “He said, she said” issues). Third, the violation has to be a “gimmee”. In other words, the evidence I send with the complaint proves on its face that there is a clear violation.

For example, I filed a complaint in 1998, alleging that a superintendent and assistant superintendent released personally identifiable information to the media about a special education student. Along with the text of the complaint, I submitted newspaper articles and a copy of the television station’s website showing the information the identified the special education student.

The complaint investigator ruled on violations for each issue I had submitted. (Incidentally, this complaint was filed after the child had graduated from high school, and it identified an issue from the child’s 10th grade year. However, since the child’s parent had become aware of the violation only after the child had graduated, I asked that timelines be tolled and the investigator granted this.

I prepare a complaint with the same care I take in filing a due process hearing request. I submit facts, violations of law, proposed conclusions, as well as a proposed resolution. In other words, I try to do as much work for the complaint investigator as possible, understanding that bureaucrats like easy solutions. I also submit supplementary information, IEPs, evaluation reports, tapes of IEP meetings, etc., because then I know that the investigator has all pertinent information and the paperwork has not been altered or manufactured in any way.

I also file complaints when there is an issue that I think can be or needs to be resolved immediately if a complaint is filed. I have always suspected – in Indiana, anyway -- that when a complaint is filed and it appears on its face to be clearly a violation or violations – that the first phone call the investigator makes is to the district, telling them to clean up its act or it risks being found in violation.

I suspect this because so often, when a clear violation complaint is filed, the school immediately cleans up its act. I filed a complaint on one occasion, where a student was not going to be allowed to participate in graduation ceremonies with his classmates for the sole reason that he had a disability. Graduation was in two weeks and an IEP meeting or hearing was out of the question.

By the time either had been held, the issue would have been moot, because the ceremony would have been over and done with. We filed a complaint. I submitted a couple of OCR investigations, and lo and behold, within a few days after filing the complaint, mom called and said the school had “changed its mind” and would “graciously allow” her son to go through the ceremony with his classmates. We withdrew the complaint.

Last, I am prepared to withdraw the complaint if and when the district comes into compliance before the complaint investigation report is delivered OR if a complaint investigator is assigned who is known to be “school friendly”. In my opinion, there is no reason to take a chance on a complaint investigator finding a reason to rule against a student in a complaint investigation if we have achieved what we desired.

So, I always withdraw the complaint once I have received in writing the school’s promise to comply with the alleged violation we have charged. If the school fails to comply, we can always file another complaint or a hearing. If I do not withdraw the complaint investigation and no violation is found, I have harmed the parent’s right – in Indiana, at any rate – of bringing up that same issue in a due process hearing.

Pat Howey
http://www.pathowey.com

When you are wrestling with a gorilla, you don't stop when you are tired; you stop when the gorilla is tired. -- Robert Strauss

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