What Is the Process in Michigan for Filing a Special Education Formal Complaint?

by Ron Greiner

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Editor's Note: The OSE/EIS is providing information in this feature with a reminder that each due process hearing decision and each complaint investigation decision is based solely on factual circumstances, as presented in individual cases. Specific cases presented here should not be the basis of generalizations about dispute resolution.

In February 2003, the Michigan Department of Education (MDE), Office of Special Education and Early Intervention Services (OSE/EIS) released revised procedures for filing complaints regarding special education. This FOCUS on Results document answers frequently asked questions about filing special education complaints and gives some background for the revisions in the complaint procedures.

What is a complaint?
Who can file a complaint?
When can someone file a complaint?

The Complaint Process

How does someone file a complaint?
What agencies can complaints be filed against?
What happens if a district receives only a verbal complaint?
What happens after the formal complaint is filed?
What will the initial investigating agency do first?
Who will investigate the complaint?
How will the ISD investigate the complaint?
How long should the investigation take?

Complaint Reporting and Follow-Up

Who will get reports after the investigation is completed?
What must be included in the investigator’s report?
What happens if the investigation report shows a violation occurred?
How long does the district or agency have to correct its actions?
Who assures the corrective action plan is followed?
What happens if the investigation report shows that no violation has occurred?
What if the investigation report shows that the complaint is not related to special education?
What if the complainant doesn’t agree with the conclusions of the investigation?

The Appeal Process

What happens during an appeal?
What if a new allegation arises in the letter of appeal?
What happens if the MDE finds that any allegation is valid?
What happens if the MDE determines all the allegations are invalid?

Complaints and Due Process Hearings

What is the difference between a complaint and a due process hearing?
Can a person file a complaint and request a due process hearing at the same time?
What if a complaint relates to an issue that was previously decided in a due process hearing?
What if a complaint relates to a public agency’s failure to implement a due process decision?

Some Additional Questions

What if a parent or other complainant struggles to put her/his concerns in writing or doesn’t understand this procedure?
Does the MDE ever bypass the ISD and conduct direct state investigations?
What if a complainant believes a district has failed to follow the law regarding a whole group of students? Does the state require a separate formal complaint for each student who is affected?
What if a complaint involves a student who is in juvenile detention or foster care?
What happens if the ISD fails to act on a complaint or fails to address all the allegations in a complaint letter?
Can a district refuse to release information to the investigator?
What if the parties don’t want to go through such a formal procedure. Is there another option?
Why were the Complaint Procedures for Special Education revised?

Q: What is a complaint?

A: A special education complaint involves an allegation (claim) that a district has failed to implement an individualized education program (IEP) for a student with a disability or has not complied with state or federal regulations related to special education.

Q: Who can file a complaint?

A: Any individual or agency, including those from another state, can file a complaint. Individuals who have filed complaints include students, parents, relatives, school district employees, and advocates. Agencies that have filed complaints include state and other agencies. Advocacy groups that have filed complaints include local, state, and national groups, some of which focus on all students with disabilities and others that focus on students with one particular type of disability.

Q: When can someone file a complaint?

A: Generally, a person has up to one year following an event to file a complaint.

If the violation is continuing or the complainant is requesting compensatory services, the allegations can go back as far as three years.

The Complaint Process

Q. How does someone file a complaint?

A: A complaint begins when someone puts concerns in writing, and those concerns connect with one or more of the criteria set forth in Rule 340.1701a(c) (see Figure 1). Formal complaints must be written and signed and must include the facts on which the allegation is based. Each written complaint must be given/sent to a district or intermediate school district (ISD) administrator. A call to the local ISD to ask for the name of the complaint investigator may speed up the process.

Q. What agencies can complaints be filed against?

A: A complaint can be filed against a specific school, school district, public school academy (PSA), ISD, or other public educational agency (see Glossary).

Q: What happens if a district receives only a verbal complaint?

A: The district or agency that receives the verbal complaint can try to resolve the complaint. However, the district must inform the person making the complaint that s/he has a right to file a written complaint that meets the standards contained in the Revised Administrative Rules for Special Education (Rules) and the final regulations implementing the Individuals with Disabilities Education Act (IDEA). The complainant may choose to delay filing a formal complaint to allow for an informal resolution or mediation.

Q: What happens after the formal complaint is filed?

A: Each written, signed complaint must be investigated and result in a written report. The agency that receives the complaint must immediately forward a copy to the ISD or the MDE. If the ISD receives it first, the ISD sends and faxes a copy to the MDE within three days. If the MDE receives the complaint first, it sends and faxes a copy to the ISD. Either way, the MDE directs the ISD to investigate the complaint and assigns a case manager and case number.

Q: What will the initial investigating agency do first?

A: The initial investigating agency—usually the ISD (see column on right)—carries out a number of steps:

Q: Who will investigate the complaint?

A: The initial investigating agency appoints an independent investigator. This means that the investigator cannot have administrative responsibility for the programs and/or services against which the complaint is filed. For example, an ISD special education director cannot investigate a complaint because of her/his responsibilities for overall management. Also, because the investigation must be independent, the investigator has the authority to determine the conditions under which information is gathered, including who may be present during interviews (see Example for an interesting case that clarifies one factor in an independent investigation).

Q: How will the ISD investigate the complaint?

A: The investigator first contacts the complainant to clarify the allegation. If necessary, the investigator helps the complainant identify additional concerns and formulate the complaint to meet the requirements in the Rules. The investigator also lets the complainant know about available mediation services as another option.
Then the investigator reviews documents and interviews personnel who work with the student. The investigator has the legal authority to examine appropriate records without the parents’ permission (Family Educational Rights and Privacy Act of 1974 (FERPA), as amended, and its federal regulations).

Q: How long should the investigation take?

A: Within 21 calendar days of the date a formal complaint is filed, the ISD must submit its investigation report. The MDE may extend the time line if it receives a written request and if exceptional circumstances exist with respect to the particular complaint. Within 60 calendar days of the filing, the MDE must issue a final written decision to the complainant and any public agencies involved unless exceptional circumstances exist with respect to the particular complaint (see Figure 3).

However, resolving complaints within this 60-calendar-day time has historically been a problem for Michigan. Improving this time line has become a key target of concern through Michigan’s Continuous Improvement Monitoring Process (CIMP). As a result of the CIMP process, the OSE/EIS has revised the complaint procedures and its own internal operating procedures regarding dispute resolution. The OSE/EIS is committed to improving its ability to deal with complaints in a timely manner (see boxed item).

Complaint Reporting and Follow-up

Q: Who will get reports after the investigation is completed?

A: When the investigation is completed, the investigator will issue a formal report to the complainant, any public educational agency involved, and the MDE.

Q: What must be included in the investigator’s report?

A: The investigator must submit a formal investigation report that identifies:

Q: What happens if the investigation report shows a violation occurred?

A: If the investigation report shows that a specific violation occurred, the allegation is valid. The report then recommends ways to correct the violation and meet the needs of the student. If a denial of services occurred, the report also recommends a remedy (see column on right).

The MDE reviews the report. The MDE issues a final decision that directs the district to correct the violation and to show proof that it has corrected the violation. If the report finds that the district has denied services to the student(s), then the MDE also directs the district to provide compensatory education. The MDE may also recommend plans for technical assistance and negotiations.

Q: How long does the district or agency have to correct its actions?

A: The MDE directive includes a time line for correcting the violation. The MDE also identifies documents the district or agency must submit to prove it has complied.

Q: Who assures the corrective action plan is followed?

A: The ISD is responsible to help the district correct the violation and monitor progress of the corrective action. When the district or agency has corrected the violation, it submits the required documents (proof of compliance) to the ISD and the MDE. The agency must submit this proof of compliance under the signatures of the district’s special education director, superintendent, and president of the board of education.

Once the MDE accepts the proof of compliance, the MDE closes the case. The MDE informs the complainant and agencies of the closure, summarizes the corrective action taken, and informs the complainant of the right to appeal to a court of competent jurisdiction.

Q: What happens if the investigation report shows that no violation has occurred?

A: If the investigation finds that no violation occurred, the allegation is not valid. The MDE then informs the complainant of appeal rights. If there is no appeal, then the MDE issues a final decision and closes the case. The MDE informs the complainant and agencies of the closure and informs the complainant again of the right to appeal to a court of competent jurisdiction.

Q: What if the investigation report shows that the complaint is not related to special education?

A: If the investigation report finds that the allegation does not pertain to the Rules or regulations, the investigator does not have the authority to rule on it. The report directs the complainant to the appropriate public agency.

If the complainant indicates a possible violation of other civil rights based upon gender, race, religion, color, creed, ethnicity, disability, or age, the investigation report refers the complainant to the U. S. Department of Education, Office for Civil Rights, Bank One Center, Room 750, 600 Superior Avenue, East, Cleveland, OH 44114-2611.

Q: What if the complainant doesn’t agree with the conclusions of the investigation?

A: The complainant has the right to contest the ISD decision and request the MDE to investigate the allegation if s/he disagrees with the report’s conclusions. If the ISD finds no violation, the MDE notifies the complainant of her/his right to appeal. The complainant has 10 days to file a written appeal.

The Appeal Process

Q: What happens during an appeal?

A: When the MDE receives an appeal, the MDE case manager informs the complainant and agencies involved. The case manager contacts the complainant to clarify the issue and provides an opportunity for additional input.

The case manager identifies the proper legal standard that applies to the allegation. S/he also reviews documents and interviews personnel involved in the case. After investigating the allegation, the MDE issues a final decision and sends its report to all parties. This report describes the facts of the case and concludes whether the allegation is valid or invalid.

Q: What if a new allegation arises in the letter of appeal?

A: If a new allegation appears in a letter of appeal, the MDE takes one of the following actions:
If the new allegation is related to the previous allegations identified in the original letter of complaint, the MDE may investigate the new allegation in the state investigation or send the new allegation to the ISD for investigation.

If the new allegation is not related to the allegation identified in the original letter of complaint, the MDE opens a new complaint investigation of the new allegation.

Q: What happens if the MDE finds that any allegation is valid?

A: The MDE directs the agency to correct the violation, tells how the agency must prove it has complied, and directs compensatory education if there has been a denial of services.

Q: What happens if the MDE determines all the allegations are invalid?

A: The MDE closes the case and informs the parties of their right to appeal to a court of competent jurisdiction.

Complaints and Due Process Hearings

Q: What is the difference between a complaint and a due process hearing?

A: In a complaint, generally the parents and the district agree on the student’s disability and on what programs and services the student is supposed to receive, but someone alleges the district did not do what it had agreed to do. The reason for the failure might be a misunderstanding, results that failed to meet someone’s expectations, or lack of resources or staff to provide the agreed-upon services.

In a due process hearing, generally the parents and the district disagree. For example, the parties can’t agree on what the student’s disability is or what the proper accommodation(s) might be. In such cases, either the parent or the district must request a hearing before an impartial third party.

Q: Can a person file a complaint and request a due process hearing at the same time?

A: Yes. If a complaint has been filed but is not resolved, and the complainant simultaneously requests a due process hearing, the investigating agency must immediately inform the MDE of the request for the due process hearing. The MDE reviews the complaint to determine if it contains any issues that are also part of the due process hearing. If the MDE determines that one or more issues in the complaint are the same as those addressed in the due process hearing, the MDE sets related issues aside and informs the parties that the matter is being held in abeyance (put on hold) until completion of the due process hearing. However, any issue in the complaint that is not part of the due process action must be resolved within the time limit and using the criteria identified for the complaint process.

Q: What if a complaint relates to an issue that was previously decided in a due process hearing?

A: The investigating agency immediately informs the MDE. The MDE informs the parents and the district that the hearing decision is binding.

Q: What if a complaint relates to a public agency’s failure to implement a due process decision?

A: The investigating agency immediately informs the MDE. The MDE is responsible for addressing the situation.

Some Additional Questions

Q: What if a parent or other complainant struggles to put her/his concerns in writing or doesn’t understand this procedure?

A: The initial investigating agency (the ISD or the MDE) is required to help the complainant identify the concerns and put them into a complaint that meets the standards contained in the definition of a complaint. The agency is also required to give the complainant an opportunity to raise additional allegations, submit additional information either orally or in writing, and clarify the allegations.

Q: Does the MDE ever bypass the ISD and conduct direct state investigations?

A: Yes. In fact, the initial investigating agency must notify the complainant right away that s/he has a right to bypass the ISD investigation and instead request the MDE to investigate the complaint. If the complainant requests the MDE to investigate the complaint, the ISD immediately forwards the complaint to the MDE and informs the MDE of the request. The MDE reviews the complaint and informs the parties that the MDE will either investigate the complaint itself or refer the complaint to the ISD for initial investigation. Generally, the MDE prefers that the ISD conduct the initial investigation, because this protects the complainant’s right to an administrative review.

Q: What if a complainant believes a district has failed to follow the law regarding a whole group of students. Does the state require a separate formal complaint for each student who is affected?

A: No. A formal complaint can pertain to one student, multiple students, or systems issues (see Figure 4).

Q: What if a complaint involves a student who is in juvenile detention or foster care?

A: The MDE forwards the complaint to the proper state agency for investigation: the Department of Corrections (DOC), the Family Independence Agency (FIA), or the Department of Community Health (DCH).

Q: What happens if the ISD fails to act on a complaint or fails to address all the allegations in a complaint letter?

A: The MDE either redirects the ISD to complete the investigation or conducts its own investigation and reports its findings to all parties. The MDE may also send back to the ISD any report that does not meet the requirements listed in the ISD Investigation Process (Section II) of the Complaint Procedures for Special Education.

Q: Can a district refuse to release information to the investigator?

A: No. All governmental agencies must cooperate with the MDE or the ISD during an investigation.

Q: What if the parties don’t want to go through such a formal procedure? Is there another option?

A: The initial investigating agency informs the complainant about mediation (see column on right).

Q: Why were the Complaint Procedures for Special Education revised?

A: Four reasons formed the basis for the revisions:

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Ron Greiner is a coordinator for Policy, Planning, and Compliance in the Michigan Department of Education, Office of Special Education and Early Intervention Services (OSE/EIS). For more information, contact him at OSE/EIS, P.O. Box 30008, Lansing, MI 48909; (517) 335-0461; Fax (517) 373-7504; e-mail: GreinerR@michigan.gov.