Dear Special Education Local Plan Area (SELPA) Directors:
Guidance Regarding Regulations for Special Education Compliance Complaints
Recent changes to California’s Uniform Complaint Procedures (UCP) affect special education complaints. The purpose of this memo is to provide guidance on some key clarifications and/or changes in the state regulations.
Assembly Bill (AB) 1808, passed in 2018, contained provisions affecting the UCP that appear at California Code of Regulations, Title 5 (5 CCR), Section 4600, et seq. California Education Code sections 33315(a)(1) and (2) provide that special education compliance complaints are no longer within the scope of the UCP. Rather, those complaints are governed by certain provisions in the Code of Federal Regulations (CFR), sections 300.151-153 (see below). AB 1808 also tasked the California Department of Education (CDE) with commencing rulemaking proceedings to, among other things, identify any state regulations that are applicable to special education compliance complaints. On May 21, 2020, the Office of Administrative Law approved the rulemaking, which is effective July 1, 2020. The applicable state regulations now appear at 5 CCR sections 3200 through 3205 (see below).
Signatures (California Code of Regulations, Title 5, Section 3200(c)
The signature on a complaint may be handwritten, typed (including in an email) or electronically-generated.
Scope (California Code of Regulations, Title 5, Section 3201(c)
In addition to complaints alleging a violation of a federal or state special education law, the scope includes allegations of:
(1) Violation of a provision of a settlement agreement relating to the provision of a free, appropriate public education, or FAPE (but not a provision of a settlement agreement relating to attorney fees); (2) failure to implement a due process hearing order; (3) failure of California Children’s Services to comply with a law relating to the provision of medically necessary occupational therapy or physical therapy as part of a FAPE; and (4) physical safety concerns interfering with the provision of a FAPE.
Failure to Cooperate in an Investigation (California Code of Regulations, Title 5, Section 3203(b) and (c)
Failure of the complainant to cooperate in the CDE’s investigation may result in dismissal (5 CCR Section 3203(b). Failure of the local educational agency or other public agency to cooperate in the investigation may result in a finding (based on the complainant's evidence) in favor of the complainant (5 CCR Section 3203(c).
Reconsideration (California Code of Regulations, Title 5, Section 3204)
Parties now have 30 days, rather than 35, within which to request reconsideration with the 30 days calculated from the date appearing on the CDE’s report (5 CCR Section 3204 a). The request for reconsideration must specify one or more of these: the CDE's report lacks material findings of fact; the material findings of fact in the CDE's report are unsupported; the legal conclusion in the CDE’s report is inconsistent with the law; or the CDE’s corrective actions fail to provide a proper remedy. (5 CCR Section 3204(a). The CDE will not consider new evidence on reconsideration unless it was not known to the party during the CDE’s investigation and could not have become known to the party during that time with due diligence (5 CCR Section 3204(b). The CDE retains the discretion to seek out additional information from any source in order to ensure an accurate report (5 CCR Section 3204(c). The CDE can make corrections to a report to ensure factual and/or legal accuracy (5 CCR Section 3204(d).
The CDE now has 60 days, rather than 35, in which to act on the reconsideration (5 CCR Section 3204(e). The CDE may deny the request or make modifications to the report. Pending reconsideration, any corrective actions in the CDE’s report remain in effect and enforceable, unless stayed by a court (5 CCR Section 3204(e).
California Code of Regulations, Title 5, Article 9
5 CCR Section 3200 provides the following definitions:
§ 3200. Definitions.
As used in this chapter, the term:
(a) ‘CDE’ means the California Department of Education.
(b) ‘Complainant’ means any individual, including a person’s duly authorized representative or an interested third party, public agency, or organization who files a written complaint alleging a violation of any of the provisions within the scope of section 3201.
(c) ‘Complaint’ means a written and signed statement alleging a violation of any of the provisions within the scope of section 3201. A signature may be handwritten, typed (including in an email) or electronically-generated. If the complainant is unable to put the complaint in writing, due to conditions such as a disability or illiteracy, the CDE shall assist the complainant in the filing of the complaint.
(d) ‘Complaint investigation’ means an administrative process used by the CDE for the purpose of addressing a special education complaint.
(e) ‘Complaint procedure’ means an internal process used by the CDE to process and resolve complaints.
(f) ‘Days’ means calendar days unless designated otherwise.
(g) ‘IDEA’ means the Individuals with Disabilities Education Act as set forth in title 20 United States Code section 1400 et seq.
(h) ‘Local agency’ means a local public or private agency which receives direct or indirect funding or any other financial assistance from the state to provide any school programs or activities or special education or related services. “Local agency” includes a Special Education Local Plan Area (SELPA).
(i) ‘Local educational agency’ (LEA) means any public school district or county office of education, or a charter school that participates in a Special Education Local Plan Area as its own LEA, or a SELPA.
(j) ‘Party’ means any person or organization filing a state complaint pursuant to section 3202, and any LEA or other public entity that is expressly identified as the subject of the complaint filed.
(k) ‘Public agency’ means any local agency or state agency.
(l) ‘SELPA’ means Special Education Local Plan Area.
(m) ‘SSPI’ means the State Superintendent of Public Instruction or the SSPI’s designee.
(n) ‘State agency’ means the State Departments of State Hospitals or Health Care Services or any other state administrative unit that is or may be required to provide special education or related services to children with disabilities pursuant to Government Code section 7570 et seq. For complaints involving the CDE’s State Special Schools Division, state agency includes the CDE.
5 CCR Section 3201 states:
§ 3201. Scope.
This article applies to complaints that allege that an LEA or, as applicable, other public agency, violated any of the following provisions:
(a) Part B of the IDEA, and federal regulations implementing Part B; or
(b) Part 30 of the Education Code, and this subchapter.
(c) Additionally, this article applies to those complaints in which
(1) The complainant alleges that an LEA or other public agency has violated the terms of a settlement agreement relating to the provision of a free, appropriate public education. An allegation relating to an attorney fees provision in a settlement agreement is expressly excluded from the article.
(2) The complainant alleges that the LEA or other public agency has failed or refused to implement a due process hearing order to which that LEA or other public agency is subject.
(3) The complainant alleges that a public agency, other than an LEA, as specified in Government Code section 7570 et seq., fails or refuses to comply with a law or regulation applicable to that public agency as it pertains or relates to the provision of a free appropriate public education to individuals with disabilities.
(4) The complainant alleges facts that indicate that physical safety concerns interfere with the provision of a free appropriate public education.
5 CCR Section 3202 states:
§ 3202. Filing a State Complaint.
(a) In accordance with 34 Code of Federal Regulations (CFR) section 300.153, an organization or individual may file a signed written complaint with the CDE under the procedures described in 34 CFR sections 300.151-152.
(b) The complaint filed pursuant to subdivision (a) must include:
(1) A statement that an LEA or other public agency has violated or failed to comply with any provision set forth in section 3201.
(2) The facts on which the statement is based;
(3) The signature and contact information for the complainant; and
(4) If alleging violations with respect to a specific child:
(A) The name and address of the residence of the child;
(B) The name of the school the child is attending;
(C) 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;
(D) A description of the nature of the problem of the child, including facts relating to the problem; and
(E) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
(c) 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 34 CFR section 300.151.
(d) The party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child at the same time the party files the complaint with the CDE.
5 CCR Section 3203 states:
§ 3203. State Complaint Procedures, Investigations, and Reports.
(a) State complaint procedures, investigations, and reports include those provisions set forth in title 34 CFR sections 300.151 through 300.153.
(b) Refusal by the complainant to provide the investigator with documents or other evidence related to the allegations in the complaint, or to otherwise fail or refuse to cooperate in the investigation or engage in any other obstruction of the investigation may result in the dismissal of the complaint because of a lack of evidence to support the allegations.
(c) Refusal by the LEA or other public agency to provide the investigator with access to records and/or other information related to the allegation in the complaint, or to otherwise fail or refuse to cooperate in the investigation or engage in any other obstruction of the investigation may result in a finding based on evidence collected that a violation has occurred and may result in the imposition of a remedy in favor of the complainant.
5 CCR Section 3204 states:
§ 3204. Reconsideration of CDE Investigation Report.
(a) Within 30 days of the date of the CDE Investigation Report, either party may request reconsideration by the SSPI or the SSPI’s designee. The request for reconsideration shall specify and explain why:
(1) Relative to the allegation(s) of the complaint, the CDE Investigation Report lacks material findings of fact necessary to reach a conclusion of law; and/or
(2) The material findings of fact in the CDE Investigation Report are not supported by substantial evidence; and/or
(3) The legal conclusion in the CDE Investigation Report is inconsistent with the law; and/or
(4) In a case in which the CDE found noncompliance, the required corrective actions fail to provide a proper remedy.
(b) In evaluating or deciding on a request for reconsideration, the CDE will not consider any information not previously submitted to the CDE by a party during the investigation unless such information was unknown to the party at the time of the investigation and, with due diligence, could not have become known to the party.
(c) Subsection (b) does not prohibit the CDE, at its discretion, from seeking and obtaining additional information from any source necessary to issue an accurate CDE Investigation Report.
(d) This section does not prohibit the CDE from making any corrections to an Investigation Report necessary to ensure factual and legal accuracy.
(e) Within 60 days of the receipt of the request for reconsideration, the CDE shall respond in writing to the parties. Such response may include a denial of the request for reconsideration, or modifications to the investigative report necessary to ensure factual and legal accuracy. Pending the CDE’s response to a request for reconsideration, any corrective actions set forth in the report remain in effect and enforceable, unless stayed by a court.
5 CCR Section 3205 states:
§ 3205. Enforcement.
(a) If a local or state agency fails to take required corrective action, the CDE may use any means authorized by law to effect compliance, including, but not limited to:
(1) Withholding of all or part of the local agency’s special education fiscal support in accordance with state or federal statute or regulation, including but not limited to section 1413 of title 20 of the United States Code, Education Code section 56845, and section 3088.1 of title 5 of the California Code of Regulations;
(2) Conditioning a local agency’s eligibility for future state or federal support on compliance with specified conditions; or
(3) Proceeding in a court of competent jurisdiction against a local or state agency for an appropriate order compelling compliance.
(b) No decision to curtail funding to a local agency under this chapter shall be made until the CDE has determined that compliance cannot be secured by other means.
If you have any questions regarding this subject, please contact the Complaint Resolution Unit at 1-916-445-4623 or the Parent Help Line at 1-800-926-0648.
Original signed by Sarah Neville-Morgan. A hard copy of the signed document is available by contacting the Special Education Division's Complaint Resolution Unit at 916-445-4623.
Sarah Neville-Morgan, Deputy Superintendent
Opportunities for All Branch