Another long overdue post. This comes up often in our chat forums. File a complaint!” And lately, we’ve been hearing a lot of “Call the state board of Nursing!” There is a lot of misinformation out there regarding IEP complaints and IEP violations.
Again, deep breaths everyone. Yes, there are FAPE complaint options for parents. That’s the good news.
The bad news is that the remedies are few and far between and the Special Education System absolutely is stacked against parents.
I’m not trying to discourage anyone from filing a complaint if that is what you want to do. However, you should know what you’re up against and what the probable outcomes will be.
IEP Violations and Complaint Options
I have filed many IEP complaints in my career and have learned quite a bit along the way.
The last time I did file one-the state of PA has only 2 investigators for all of its professional conduct complaints. Two. We have over 500 school districts and 12 million citizens, 2 investigators.
Your complaint has to catch their eye and make it simple for them to come to your conclusion. Otherwise, they’ll move on.
Much of what is advised parent to parent is often misguided and will only waste your time. If you want to file an effective complaint that will stick, read on. A friendly reminder that I am not an attorney nor do I play one on the internet.
The following is intended as general guidance for parents, and you may need to contact a special education attorney, especially if you are considering some type of IEP violation lawsuit. A good attorney will explain your legal options.
Many parents feel wronged, and justifiably so. When your child has been harmed, many want to know what possible IEP violation lawsuit settlement amounts might be. In that case you would need to ask an attorney about compensatory education.
Types of IEP Violations
Individualized Education Program (IEP) violations occur when a student’s IEP rights are not upheld or when there is a failure to follow the IEP.
IEP violations can result in significant harm to the student’s educational progress, so it is essential to understand the types of IEP violations and how they can be prevented. There are legal consequences of not following an IEP, but it will take time and effort for a parent.
IEP violations can be categorized into two types: procedural violations and substantive violations.
There are two types of IEP or IDEA violations:
Procedural Violations:
Procedural violations are related to the procedures outlined in the IEP process. Procedural violations examples can include:
a. Failure to involve parents or guardians in the IEP process: Parents or guardians must be included in every step of the IEP process, from planning to implementation.
b. Failure to provide proper notice: Schools must provide parents or guardians with adequate notice of IEP meetings and any changes to the IEP.
c. Failure to evaluate the student: Schools must conduct regular evaluations of the student to ensure that the IEP is meeting their needs.
d. Failure to provide appropriate accommodations: Schools must provide the necessary accommodations and services outlined in the IEP.
e. Failure to implement the IEP: Schools must implement the IEP as written, and if changes need to be made, they must follow the proper procedures.
f. Failure to provide a free and appropriate public education (FAPE): Schools must provide a FAPE to every student with disabilities, as mandated by the Individuals with Disabilities Education Act (IDEA).
Substantive Violations:
Substantive violations occur when the school fails to provide the student with the services and accommodations outlined in the IEP. These violations can include:
a. Failure to provide appropriate accommodations: Schools must provide the necessary accommodations and services outlined in the IEP.
b. Failure to provide the appropriate level of service: Schools must provide the appropriate level of services to meet the student’s needs, as outlined in the IEP.
c. Failure to provide services in a timely manner: Schools must provide services in a timely manner to ensure that the student’s progress is not hindered.
d. Failure to provide the services in the right setting: Schools must provide services in the least restrictive environment possible, as outlined in the IEP.
e. Failure to provide the necessary staff: Schools must provide the necessary staff to carry out the services outlined in the IEP.
In conclusion, procedural violations are related to the procedures outlined in the IEP process, while substantive violations occur when the school fails to provide the services and accommodations outlined in the IEP.
It is essential for parents, guardians, and educators to be aware of these violations and work together to prevent them from occurring to ensure that the student receives the education they deserve.
How to Report an IEP Violation
The list below will start with the least, and move up to most aggressive type of complaint option. Local school district up to federal complaint options.
This article assumes that you have already exhausted other administrative remedies. You’ve done your parent concerns letter and asked for your PWNs.
I also will assume that if you have an issue with your child’s aide, for example, that you have gone up the chain of command with your concerns.
Also, remember that parent Procedural Safeguards and Due Process hearings were established for parents to have a resolution method for the quality or integrity of programs. If you do not file for due process, it is assumed that you are satisfied with your IEP.
Most of the complaint options available to parents are procedural complaints only.
This means if you are arguing with your district over a full-on Wilson reading program for your child, vs the half-hour of pullout reading instruction each week that they are offering, that is a due process issue. Not a school district grievance. Make sense?
School District Chain of Command
In most districts, the chain of command is similar to this:
teacher—>principal—->special ed director—>director of pupil services—–>superintendent/school board
Be smart when emailing your IEP team. You also should never assume privacy. Assume that whatever you send out will be shared. This is why it is so important to keep your IEP communication professional.
Each time you contact another person (in writing!), personally I would add a “And I would like a written response from you within five business days or I will take further action” on each message. This will hopefully keep things from dragging on too long.
Ok, but let’s say you’ve exhausted that process and you’re ready to move on.
IEP Complaint Options for Parents
- School District Complaints: Search your district’s website and look for whatever formal grievance procedure they have, and file one. Ask to present it at the next school board meeting if you are comfortable public speaking. Take some folks with you for moral support.
- If you live in an area where the county oversees education, I would look and see if there is a county-level complaint above the school district level complaint.
- State Compliance Complaints: Each state should have a State Department of Education website where this information will be available. However, a compliance complaint is just that–about compliance. Most often it means that you did not receive the IEP Meeting Invitation 10 days before the meeting. Or that they did not complete the evaluations within the mandated 60 days. If you have great data and documentation that the team is not following the IEP as written, you can try filing a compliance complaint. But do not be surprised if they bump you back to using your IEP Procedural Safeguards.
- State Complaints-Professional Boards: Again, this will vary from state to state. But there are state licensing boards for nurses, OTs, PTs and certifications for teachers. In PA, our complaint system for teachers only allows for certified teachers. So, if you are at a private school without certified teachers, this is not your venue. But, find your state’s page simply by using Google and you should find all the instructions on how to fill it out. You should know that if you file a complaint against a professional and that person belongs to a union, that union will defend them. That is why people pay union dues. Again, just letting you know what you are up against. You also will have to demonstrate that the offender actually violated state laws regarding their profession, their state’s practice act, or similar.
- FERPA complaints– A friendly reminder that educational records are governed by FERPA, not HIPAA. And of course, you’re going to have to read through FERPA and discern which portions were violated. According to the USDOE website: A parent of a student under the age of 18 at an elementary or secondary school or a student who is at least 18 years of age or attending a postsecondary institution at any age (“eligible student”) may file a written complaint with the Family Policy Compliance Office (FPCO) regarding an alleged violation of a school’s failure to comply with his or her rights under FERPA. A parent of an eligible student generally may not file a complaint under FERPA, as the rights afforded to parents are transferred to the student when he or she becomes an eligible student.
- Office of Civil Rights Complaint– OCR is a federal office, therefore federal laws apply. That link will explain how to file a complaint. OCR complaints must be completed within 180 days of the last event.
- US Department of Justice– I have this one listed last, and that’s for a reason. The reason being that it’s not really for novices, and it’s an option only for very specific situations. Situations that most parents won’t know how to prove (because we’re not civil rights attorneys). From an attorney: re the DOJ complaint, while it might be useful in some situations, I think the primary reason that you don’t hear too much about it is because it is purely concerned about discrimination – versus IEP violations per se – which can be difficult to show (e.g. a bad program / placement not the same as discriminatory conduct). Moreover, typically if a claim leans mostly towards a discrimination allegation, most of the time it is handled by the Office of Civil Rights – not sure if there might be some crossover here. All that said, it certainly might be worth a try in some instances. However, in most cases not only is there more than just discrimination being alleged by a parent, but also discrimination itself can be a high threshold to meet.
Other IEP Complaint Options
- Personally, I would also seek out the assistance of a special education advocate. A good advocate knows the special education climate in your area and can advise you.
- Contact your state’s disability advocacy agency to see if they can help. Every state has one!
- Contact an attorney who specializes in Special Education or Disability Rights if you feel it’s warranted.
None of the above suggestions is simple to do or a quick fix, unfortunately. All of these options take time and a lot of preparation. They shouldn’t be done in the heat of the moment after a horrible IEP meeting.
They need to be thought out, well written and have the documentation to support the complaint.
And just my $0.02 about kibbitzing with other parents. I’m all for networking and having a great support system, just make sure it’s all for the best.
Knowledge is good to have, but make sure that you make all of your complaints about your child and only your child. Most agencies will dismiss any complaints if you are not the parent/guardian of that child.
However, if it’s warranted, there’s nothing wrong with a bunch of families all submitting professional conduct complaints (or similar measures) all at the same time.
In fact, that can work to your advantage if OCR receives several complaints all within the same week or two, about the same district. They are more likely to investigate your complaint.
I hope this helps, and good luck. If this article leaves you feeling that maybe you don’t need to take these steps just yet, you may wish to read What to Do if Your School is Not Following the IEP.
