Due Process Complaint Investigation Procedures


Introduction

An organization or individual may file a written complaint at any time in the calendar year with the Commissioner of the Maine Department of Education (the Commissioner), alleging that a public agency (such as a school administrative unit, Child Development Services site, private school or the Maine Department of Education) has failed to comply with Maine Special Education Laws and Regulations or the Federal Individuals with Disabilities Education Improvement Act (IDEA 2004) and its regulations. The complaint investigation process may also be used for the enforcement of a mediation agreement made under the Maine Unified Special Education Regulations (MUSER), Chapter 101, §§XVI.2 or 3.B(6) or for the enforcement of a resolution agreement made under MUSER, Ch. 101, §XVI.11.D, however, a party may choose to go to a court of competent jurisdiction for the enforcement of such agreements.

Filing a Complaint

A complaint must include a statement that a public agency has violated a requirement of the IDEA or Maine special education law and regulations including, but not limited to, identification, evaluation, placement, or the provision of appropriate early intervention services (for children birth through two (2) years of age) or a free appropriate public education (FAPE) (for children three (3) through twenty (20) years of age). The complaint must include the facts on which the claim of violation is based.
Complaints must be in writing and signed by the individual requesting the complaint investigation or an individual with authority to sign on behalf of an organization. The complaint must be submitted to the public agency alleged to have violated the law, to the public agency serving the child at the time the party files the complaint (if different), and to the Maine Department of Education (the Department) by the requesting party.

A dispute resolution request form is available from the Department and on its website at: www.maine.gov/education/speced/dueprocess/documents. Individuals filing complaints are encouraged to use the dispute resolution request form to ensure that necessary information for processing a complaint is submitted. In addition to the complaint process, complainants may wish to indicate on the form a willingness to participate in mediation as another option available for the resolution of disputes. If, however, a complaint involves general, systemic allegations, whether or not accompanied by allegations concerning a specific family and/or student, the complainant may not resolve those systemic allegations through mediation. The Department has formulated a specific policy and procedure, including a separate form, for systemic complaints, available on the Department’s website at: www.maine.gov/education/speced/dueprocess/documents/systemic_complaint_policy.doc.

Complaints may be submitted to:

Due Process Office
Maine Department of Education
Special Services Team
23 State House Station
Augusta, Maine 04333-0023
Fax: 624-6641

Questions regarding: complaint investigation, mediation, hearing and other dispute resolution procedures; requirements for providing special education services to children with disabilities; or requests for copies of the Maine Unified Special Education Regulations should be directed to the Maine Department of Education, Special Services Team (207) 624-6644, TTY: (888)577-6690, or the address listed above.

Interested Party

An interested party is an organization or individual that is neither the parent of a child who is the subject of a complaint investigation nor has legal guardianship of an adult student who is the subject of a complaint investigation.

If an interested party requests a complaint investigation of a public agency and the complaint involves one or more specific families and/or students, in order for the interested party to receive any document containing personally identifiable information about a family and/or student and to participate in a mediation (along with a family and/or student), the form or letter requesting the complaint must be signed by that parent or adult student as well as the interested party. 

If the form is not signed by the parent or adult student, the interested party: shall not receive any document from the public agency, its representative or the Department with personally identifiable information about the family and/or student; and shall not participate in a mediation associated with the complaint investigation. 

Receipt of Complaint and Notification

The Department will investigate and resolve complaints within 60 calendar days. The timelines specified in these procedures will commence on the date the Department receives a complete signed, written complaint.

Within 10 business days of the receipt of a complaint the Commissioner will appoint a complaint investigator and issue an appointment letter, with copies to the parties and their representatives and advocates, if applicable, that will:

  • Identify the complaint investigator appointed to conduct the complaint investigation. In addition to its own employees, the Department may train others to act as complaint investigators. All complaint investigators are considered state employees while carrying out their official duties and are entitled to the immunity provided state employees under the Maine Tort Claims Act.
  • Notify the public agency (the respondent) of the complaint and all information about the complaint that is available to the Due Process Coordinator (including a copy of the original complaint), of the opportunity to respond to the complaint, and of the need to submit documentation, including a list of interviewees, by a certain date to the complaint investigator with a copy to the party who submitted the complaint (the complainant) and the complainant’s representative or advocate, if applicable; and,
  • Notify the complainant of the Department’s receipt of the complaint, the Department’s complaint investigation process, and the complainant’s right to submit additional information orally or in writing by a certain date to the complaint investigator with a copy of all writings to the educational agency and its representative, if applicable; and
  • Notify both parties of the date, time and place scheduled for a complaint investigation meeting.  The meeting will take place after mediation (where the parties have agreed to participate in mediation) and before the date by which the documentation is due. 

Dismissal of a Complaint

The Due Process Coordinator may recommend that the Commissioner dismiss a complaint if the allegations:
do not concern the education of students with disabilities; have been previously resolved within a complaint or due process hearing and when no continuing violation is identified; occurred in excess of one year prior to the date that the complaint is received; or occurred in excess of two years prior to the date the complaint is received when the complainant is requesting compensatory services.

Complaint Investigation Process

Within 60 calendar days of receipt of a complaint, the complaint investigator shall complete an independent investigation of the allegations and the Commissioner shall mail a written report to both parties to the complaint. A reasonable extension of this or other time frames may be granted only if exceptional circumstances exist with respect to a specific complaint, or if the complainant and the respondent voluntarily agree to extend the time to resolve the matter through mediation or alternative means of dispute resolution.

A. Memo of Draft Allegations

The complaint investigator, upon receipt of a copy of the complaint, will send out to the complainant and the respondent a memorandum of draft allegations that are to be investigated. The draft allegations memorandum will also identify allegations that will not be investigated due to a legal insufficiency, such as would lead to the dismissal of a complaint. In the memo, the complaint investigator will request that the complainant do the following: 1) respond to the draft allegations by a certain date if that party believes the draft allegations are incorrect or incomplete; 2) submit by a certain date a response to the complaint (in the case of the respondent) and documents supporting that party’s positions; and 3) submit by a certain date the contact information for interviewees for the case. 


B. Complaint Investigation Meeting

At the complaint investigation meeting, held prior to the date by which the documents and contact information are due, the parties will work to clarify the allegations, stipulate to agreed facts and identify categories of documents to be submitted and interviewees to be contacted. The purpose of the meeting is to make the investigation process more efficient by identifying more precisely the scope and nature of the dispute and of the investigation. The meeting is not intended to be an opportunity for advocacy or resolution. If a complainant nevertheless intends to be represented at the meeting by an attorney or advocate, the attorney or advocate, or a person employed by that person’s firm or agency, shall provide the complaint investigator, the respondent and the Due Process Office with at least seven (7) days written notice prior to the complaint investigation meeting that they will be representing the parent at the meeting. An attorney may represent a respondent in a complaint investigation meeting only when an attorney represents the complainant. 

C. Data Collection

The complaint investigator will carry out an independent investigation and review all relevant information concerning the alleged violation(s). The complaint investigator, as an agent of the Commissioner, is authorized to review all relevant educational records while conducting a complaint investigation (34 C.F.R. §99.35(a) of the implementing regulations for the Family Educational Rights and Privacy Act). The respondent shall comply with any reasonable request for copies of records within 5 calendar days of its receipt of the request.

If a party wishes the complaint investigator to interview people who are not or were not at the relevant time employees or contractors of the respondent, the party must be sure that the parent or adult student signs a release authorizing those people to speak with the complaint investigator. If the complaint investigator contacts a prospective interviewee and the prospective interviewee indicates that the parent or adult student has not signed a release for the interviewee to speak with the investigator, the investigator will contact the party who identified that interviewee as soon as possible and give the party a date by which the parent or adult student must give the interviewee permission to speak with the investigator. If, after the designated date, the interviewee has not been given a release to speak with the investigator, the investigator will not attempt again to interview that interviewee.

If the investigator has been asked to interview people who are employees or contractors of the respondent, the respondent must give the complaint investigator timely and reasonable access to the prospective interviewees. If, for any reason, a complaint investigator finds that a respondent is barring or limiting access to interviewees who are its employees, the investigator will immediately report the situation to the Due Process Coordinator and the Maine Department of Education’s Assistant Attorney General.

The complaint investigator will contact the complainant to ensure that the complainant has an opportunity to present additional information to the investigator either orally or in writing. All documents submitted by the two parties to the complaint investigator in the course of the investigation (this includes audio cassettes, CD’s, video cassettes and DVD’s) will be retained by the complaint investigator and submitted to the Maine Department of Education Due Process Office (DPO) after the complaint investigation report (CIR) has been distributed to the parties by the Commissioner. It is very important that parties not give original documents to the investigator since those documents will not be returned to the parties.

D. On-Site Visit

The complaint investigator may determine that an on-site visit is necessary in order to complete a complaint investigation. Any on-site visit will be coordinated with the respondent and will be scheduled at a mutually convenient time and place.
The complaint investigator may, in lieu of an on-site investigation, conduct telephone interviews of the respondent, the complainant, the student, and others with a direct knowledge of the student and/or the allegations.

E. Ancillary Allegations

  1. If, during the course of the complaint investigation, an investigator encounters information that suggests a failure to comply with MUSER, Chapter 101 that was not listed as an allegation by the complainant, the investigator will notify the parties and the DPO of the ancillary allegation(s) and give both parties the opportunity to respond and provide documentation about the allegation(s) to the complaint investigator, the other party and their representatives or advocates, if applicable, and a deadline by which to do so. The ancillary allegation(s) will be added to the list of allegations for the investigation (labeled as “Ancillary Allegations”) and included in the draft CIR.
  2. If, in the course of a complaint investigation, an investigator comes upon an issue that pertains to other state education statutes and/or regulations apart from MUSER, Chapter 101, the investigator will determine whether or not the issue and pertinent statutes and/or regulations are inextricably intertwined with the provision of a FAPE for the student on whose behalf the investigation is being conducted. If the investigator cannot make such a determination based on the information s/he possesses at the time, the investigator will notify the parties of the ancillary issue, request documents from them about the issue, and give a date by which the documents must be received by the investigator. The investigator will decide, based on the previously received and any newly received documents, whether or not reference to other state statutes and/or regulations is required to make a determination about the provision of a FAPE, and whether or not therefore the issue will be included in the investigator’s draft CIR.

Complaint Investigation Report and Commissioner's Order


At the conclusion of the complaint investigation, the investigator will submit to the Department for its review a draft CIR. The Commissioner’s CIR will be issued to the complainant and the respondent within 60 calendar days of the Department’s receipt of the complaint unless there have been exceptional circumstances or the parent and the educational agency involved voluntarily agree to extend the time to resolve the matter through mediation or alternative means of dispute resolution.
The CIR will summarize the complaint investigation activities, including:

  • the date the complaint was received; 
  • the date the complainant and respondent were notified;
  • the date the complaint investigator was appointed;
  • the date the respondent’s response to the complaint was received;
  • if applicable, the reason any extension of time frames beyond 60 days was granted;
  • each allegation made by the complainant, or identified by the complaint investigator during the complaint investigation, and the applicable regulations or statutes;
  • all findings of fact and conclusions of law relating to each allegation; and
  • the reasons for the final decision regarding each allegation.

The Commissioner shall also, where one or more violations are found, issue an order in the CIR called a corrective action plan (CAP), directing the educational agency to take appropriate corrective action within a specified period of time.

Corrective Action Plan

  If the Commissioner in the CIR finds the respondent has violated one or more applicable regulations or statutes, the report will include a CAP with which the respondent must fully comply in a timely manner in order to correct the violations. Each CAP item will correspond as closely as possible with the violation. The CAP may include requirements that involve a higher standard of activity than MUSER, Ch. 101 and IDEA 2004 require in order to ensure the respondent’s proper correction of the violations. For example, if the respondent is found to have violated the requirements of Prior Written Notice (PWN) (also referred to as Written Notice), the respondent might be ordered to provide an in-service training about PWN to all of its special education staff.
Once the parties have received copies of the CIR from the Commissioner, the DPO will send a compliance documentation letter to the respondent. That letter will contain due date(s) for the corrective action plan item(s) and will describe what is required in order to document compliance. The DPO case manager for the complaint investigation is responsible for monitoring the respondent’s compliance with the CAP.

If the respondent is unable to submit the CAP compliance documentation to the DPO by the designated date, the respondent must request in writing to the case manager an extension of the due date(s) and propose a new date by which the required documentation will be submitted. When the respondent submits documentation to the DPO case manager for the CAP compliance, it must send copies of the documentation to the complainant and the complainant’s representative or advocate, if applicable, and to the complaint investigator.

Enforcement

Compliance with the CAP must be completed within 30 days of the date of the respondent’s receipt of the CIR unless another time frame is specified within the CAP or in a compliance letter from the DPO.
If compliance with the CAP is not achieved within 45 days (or other specified time frame) of the respondent’s receipt of the CIR, the Commissioner:
May withhold financial aid from the respondent until it complies with the Commissioner’s order; and/or
Shall refer the matter to the Attorney General or his/her designee, who shall take appropriate action to bring the respondent into compliance.

Waivers

If a parent or adult student decides during the CAP compliance monitoring period that they do not wish to take advantage of some or all of the CAP items, they may contact the case manager and discuss their reason(s) for no longer wanting to do so. The case manager may then request that the parent or adult student send a written waiver for those CAP items.
Providing the case manager has no concerns about the cause of the parent or adult student’s decision to waive the CAP items, the case manager will write a letter to the Superintendent about the waiver and will relieve the respondent of the obligation to fulfill the affected CAP requirements. If, however, a parent or adult student claims that the reason for no longer wanting to take advantage of the CAP items is that the respondent has pressured them to do so or has refused to provide or follow through on a CAP item, the case manager will report this to the Attorney General’s Office.

Closure

The Department is responsible for monitoring the respondent’s compliance with the CAP and for determining when it has fully complied. The Department will then close the complaint investigation and will send a letter of closure to the respondent and to the complainant and the complainant’s representative, if applicable.

What if, after the report is issued, a party believes there is a mistake in the report?

If a party believes that the CIR contains a factual error that is material to one or more of the determinations, the party may inform the Department and the other party, in writing, within 15 days after its receipt of the report. The party shall identify in the letter the asserted error and enclose any documentation in support of the claim. Note, however, that where a party failed to submit relevant documentation during the investigation process despite having had the opportunity to do so, the Department will not review the claim of error. The Department will duly consider the claim of error after receipt of the letter and documentation.

What if, after the report is issued, a party disagrees with the outcome?

If, after the CIR is issued, a party wishes to take some or all of the complaint investigation allegations to a forum where more formal procedures are used, the party may file for a due process hearing. More information about the hearing process and a copy of the hearing request form may be obtained from the Due Process Office, voice: (207) 624-6644 and TTY: (888)577-6690 or from the Maine Department of Education website at: www.maine.gov/education/speced/rules/07regs.rtf.

What if, after the complaint is filed, the respondent requests a due process hearing?

If, after the complaint is filed, the respondent requests a due process hearing under MUSER §XVI.5 that involves all of the issues raised by the complaint, the complaint will be held in abeyance until the conclusion of the hearing. If the due process hearing involves some but not all of the issues raised by the complaint, only those issues not involved in the hearing will continue to be investigated. The due process hearing decision will be binding on all issues covered by it.

Appendix

Applicable Statutes and Regulations

Title 20-A M.R.S.A. §7206. Investigation of noncompliance.
The following provisions apply to an investigation of noncompliance with this chapter.

1. Complaint. An interested party may file with the commissioner a written complaint alleging that a school administrative unit or private school serving children with disabilities has failed to comply with this chapter. The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received unless a longer period is reasonable because a violation is continuing or the complaint is requesting compensatory services for a violation that occurred not more than 3 years prior to the date the complaint is received.

2. Investigation; written report. The commissioner shall initiate, and complete within 60 days, an investigation and a written report.

5. Enforcement. If the unit fails to comply with the commissioner’s order, the commissioner:

A. May withhold financial aid from the school administrative unit until it complies with the commissioner’s order; and
B. Shall refer the matter to the Attorney General, who shall take appropriate action to bring the school administrative unit into compliance.

6. Additional remedies. The remedies provided in this section are in addition to any other remedy in law or equity.

7. Complaint investigators; immunity. The State shall train complaint investigators. For the purpose of this section, while carrying out their official duties, complaint investigators are considered state employees and are entitled to the immunity provided state employees under the Maine Tort Claims Act.

MUSER, Chapter 101


§XVI.4.A  Minimum State Complaint Procedures.
4. Complaints
A. Minimum State Complaint Procedures.
(1) Within 60 days after a complaint is filed under this section the Department shall:

(a) Carry out an independent on-site investigation, if it determines that an investigation is necessary;

(b) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint; 

(c) Provide the SAU with the opportunity to respond to the complaint, including, at the discretion of the SAU, a proposal to resolve the complaint;

(d) Provide an opportunity for a parent who has filed a complaint (or individual or organization who has filed a complaint, with the authorization of the parent)and the 05-071 Chapter 101, Maine Unified Special Education Regulation page 155 SAU to voluntarily engage in mediation consistent with Section XVI.2 of this Chapter and 34 CFR § 300.506;

(e) Review all relevant information and make an independent determination as to whether the SAU is violating a requirement of Part B or Part C of the Act or of this chapter; and

(f) Issue a written decision to the complainant that addresses each allegation in the complaint and contains--   

(i) Findings of fact and conclusions; and

(ii)The reasons for the Department 's final decision.

(2) The time limit described in paragraph (1) of this section may be extended only if:

(a) Exceptional circumstances exist with respect to a particular complaint; or

(b) The parent (or individual or organization, with authorization of the parent) and the SAU agree to extend the time to engage in mediation pursuant to paragraph (1) (d) of this section: and

(3) Provide procedures for effective implementation of the Department's final decision: shall include:

(a) Technical assistance activities;

(b) Negotiations; and

(c) Corrective actions to achieve compliance.

(4)

(a) If a written complaint is received that is also the subject of a due process hearing under Section XIV.5 of this chapter [§ 300.507 or §§ 300.530 through 300.532], or contains multiple issues of which one or more are part of that hearing, the Department shall set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action shall be 05-071 Chapter 101, Maine Unified Special Education Regulation page 156 resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.

(b) If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties--

(i) The due process hearing decision is binding on that issue; and

(ii) The Department shall inform the complainant to that effect. 

(c) A complaint alleging a SAU's failure to implement a due process hearing decision shall be resolved by the Department [20 U.S.C. 1221e-3 and 34 CFR 300.152]                                                                            

B. Filing a Complaint.

(1) An organization or individual may file a signed written complaint under the procedures described in paragraph (A) of this section.

(2) The complaint must include:                                                                                                              

(a) A statement that a public agency , SAU has violated a requirement of Part B or Part C of the Act or of this part chapter;      (b) The facts on which the statement is based;

(c) The signature and contact information for the complainant; and

(d) If alleging violations with respect to a specific child -- 

(i) The name and address of the residence of the child;

(ii) The name of the school or the early intervention services provider the child is attending;

(iii) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending; 05-071 Chapter 101, Maine Unified Special Education Regulation page 157

(iv) A description of the nature of the problem of the child, including facts relating to the problem; and

(v) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(3) The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with paragraph (1) of this section [§ 300.151] unless a longer period is reasonable because the complainant is requesting compensatory services for a violation that allegedly occurred not more than two years prior to the date that the written complaint is received by the Department.  

(4) The party filing the complaint must forward a copy of the complaint to the SAU serving the child at the same time the party files the complaint with the Department. [20 USC 1221e-3 and 34 CFR 300.153]