ACSA SymposiumPresented by:

Jessi Gasbarro & Anahid Hoonanian January 15, 2015

The Dark Side of the Moon: Responding to OCR and CDE

Complaints

Topics Covered

• CDE Complaint Process

• OCR Complaint Process

• Responding to Complaints

• Legal Considerations

• Q & A

CDE Complaint Process

Jurisdiction

Under Title 5 of the California Code of Regulations section 4650, Complaints for special education are limited to whether:

(A) The LEA fails or refuses to comply with an applicable law or regulation relating to the provision of FAPE to individuals with disabilities;

(B) The LEA fails or refuses to comply with the due process procedures established pursuant to federal and state law and regulation; or has failed or refused to implement a due process hearing order;

(C) The Complaint indicates that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a child or group of children is threatened;

(D) An individual with a disability is not receiving the special education or related services specified in his or her individualized educational program (IEP); and

(E) The Complaint involves a violation of federal law governing special education, 20 U.S.C. section 1400 et seq., or its implementing regulations.

Process

(1) Complaint

(2) Notification of Investigation

(3) Request for Information

(4) Response

(5) Investigation Report

Timelines

Investigation must be completed within 60 calendar days unless:

• Parties otherwise agree; or• Exceptional circumstances

(5 CCR § 4662)

Final Outcomes

• Dismissal;• Finding of Compliance; or• Finding of Non-Compliance and award of

Corrective Actions

Examples of Corrective Actions

• Trainings• Review/update policies• Comp Ed• Convene IEP mtgs• Provide PWN• Provide access to records

Appeals

• Request for Reconsideration (within 30 Days of Investigation Report)

OCR Complaint Process

Jurisdiction

• OCR enforces these laws:– Section 504 of the Rehabilitation Act of

1973– Age Discrimination Act of 1975– Title II of the Americans with Disabilities

Act of 1990– Title VI of the Civil Rights Act of 1964– Title IX of the Education Amendments of

1972– Boy Scouts of America Equal Access Act

Filing an OCR Complaint

• Who can file a complaint?• Complaint form• Trends:

– Bullying– Service animals– Sex discrimination (gender-based

harassment, sexual harassment, sexual violence, equality in athletics)

– Discipline– Instructional minutes

Evaluation of the Complaint

• OCR determines if it will investigate the complaint

• If warranted, OCR will dismiss the complaint

– Resources: OCR Case Processing Manual (http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html)

Complaint Investigation

• Complaint Notification

• Investigation• Data Request• Interviews

OCR Interviews

• Preparation• Objective• Telephonic or in-person• Participation of counsel• Minors

Letter of Findings

• Fact-specific findings and determinations for each individual complaint

– Compare with formal policy statements

Complaint Resolution

• Prior to Completion of Investigation:

– Early Complaint Resolution

– Voluntary resolution agreement

– Monitoring of implementation of agreement

• After Determination of Non-compliance:

– Refusal to enter into voluntary resolution agreement

– Letter of Findings– Letter of Impending

Enforcement Action– Administrative

enforcement action

Appeal

• Grounds for appeal of Letter of Finding

• Timeline for appeal

Timelines

• Statue of limitations• Voluntary resolution• Appeal• Response to appeal

Responding to CDE/OCR Complaints

Responding to Complaints

• Who should prepare the response?

• Fact gathering

Legal Concerns: Confidentiality Complaints

• Identity of the complainant

• Copy of the complaint

• Authority to obtain information

Legal Concerns: Burden of Proof

• Complaining party does NOT bear the burden of proof (OSEP Letter to Reilly, 114 LRP 49672 (OSEP 11/03/14)

• Complaining party’s only obligation is to file; it is CDE’s obligation to investigate, collect evidence and reach a conclusion

Preparing the Response

• Response to complaint• Declarations• Exhibits

Interviews

• Not always involved in every case

• Consider having attorneys or admin present

Complying with Corrective Actions/Resolution Agreements

• Calendar deadlines

• Make sure staff know action items they are responsible for

• Send written documentation of proof of compliance by deadlines

• Do NOT need to send proof of compliance to Complainant

Availability of Attorneys’ Fees

• 9th Circuit has held that attorneys’ fees are available to Complainant for bringing a successful CDE complaint

Alternative Resolutions

• Consider resolving complaint with parents and requesting withdrawal of complaint

Best Practices

• Calendar deadlines• Gather information

and records• Review relevant

board policies and regulations

• Notify relevant staff

• Prepare staff for interviews

• Remember the prohibition against retaliation

• If your insurance policy may cover discrimination complaints, notify the carrier

• Consider resolution options and strategies

Best Practices

• Monitor compliance with resolutions and required corrective actions

• Document evidence of compliance

• Follow up regarding case closure

Questions

PLEASE NOTE

THE LEGAL STUFFThese materials are for instructional purposes only. This information is not intended as legal advice. If you are in need of a legal opinion on the subject matter covered herein, you should contact your local school counsel or an attorney at Lozano Smith at www.lozanosmith.com or call (916) 329-7433.

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