La. Admin. Code tit. 28 § XLIII-153

Current through Register Vol. 48, No. 11, November 20, 2022
Section XLIII-153 - Formal Written Complaint Procedures
A. Time Limit; Minimum Procedures. The time limits in this Section commence after LDE receives a signed written complaint filed in accordance with §152 of this Chapter. The LDE will refer the complaint to the LEA superintendent, special education director/supervisor, or ERP representative in accordance with §151 of this Chapter.
1. The LDE shall:
a. not commence investigation of a formal written complaint until after the expiration of the 15-day early resolution period described in §151 of this Chapter; but
b. shall complete its investigation of unresolved allegations and issue a decision within 45 days after the expiration of the early resolution period in accordance with the procedures contained in this Section.
2. Upon expiration of the resolution period, the LDE shall review the allegations contained in the complaint and shall provide written notice to the LEA or public agency serving the student, including the following:
a. a request for specific information needed by the LDE to carry out its independent investigation of the complaint;
b. reasonable timelines established for providing such information to the LDE;
c. a statement of the opportunity to respond to the complaint, including at a minimum:
i. the opportunity to provide a proposal to resolve the complaint, at their discretion; and
ii. the opportunity to offer to the parent who has filed a complaint, mediation consistent with §506 or neutral IEP facilitation as available through the LDE.
B. The LDE shall provide written notice to the complainant including a statement of the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint.
C. All information relevant to the complaint shall be reviewed by the LDE, and a decision shall be made as to whether an independent on-site investigation is needed.
D. The LDE shall review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the IDEA.
E. Decision. Within 45 days of expiration of the early resolution process, the LDE shall issue a written decision to the complainant and the public agency that addresses each remaining allegation of the complaint and contains:
1. findings of fact and conclusions; and
2. the reasons for the LDE's final decision.
F. Time Extension; Final Decision; Implementation. The LDE shall permit an extension of the time limit under Subsection A of this Section only if:
1. exceptional circumstances exist with respect to a particular complaint; or
2. the parent (or individual or organization) and the public agency involved agree to extend the time to engage in mediation, IEP facilitation, or other alternative means of dispute resolution.
G. Complaints Filed under this Section and Due Process Hearings Under §507 and §530
1. If a written complaint received is also the subject of a due process hearing under §507 or §530 or, if it contains multiple issues, of which one or more is part of that hearing, the LDE 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 of the complaint that is not a part of the due process action shall be resolved, using the time limit and procedures described in Subsections A and B of this Section.
2. If an issue raised in a complaint has previously been decided in a due process hearing involving the same parties:
a. the due process hearing decision shall be binding on that issue; and
b. the LDE shall inform the complainant to that effect.
3. A complaint alleging an agency's failure to implement a due process hearing decision shall be resolved by the LDE.
H. Remedies for Denial of Appropriate Services. In resolving a complaint in which it has found a failure to provide appropriate services, the LDE, pursuant to its general supervisory authority under Part B of the IDEA, shall address:
1. the failure to provide appropriate services including corrective action appropriate to address the needs of the student (such as compensatory services or monetary reimbursement); and
2. appropriate future provision of services for all students with disabilities.
I. Reconsideration Requests. If either the public agency or the complainant believes that the LDE has made an error in one or more findings of fact and/or law, a reconsideration of the investigative findings and decision may be requested, in writing, to the LDE's legal division in accordance with the following procedures:
1. the request shall be simultaneously submitted to the LDE and the other party subject to the complaint; and
2. for each error submitted for reconsideration, the requestor shall provide the reference number assigned by the LDE to the complaint at issue; the page number of the written decision where such alleged error can be found; highlighted sections of data submitted for investigation that would assert a fact contrary to what is reflected in the written decision; and citations to applicable law, regulations, or jurisprudence, where applicable, to support the alleged error of law; and
3. the requestor shall provide a written explanation that indicates how originally-submitted documentation changes the respective finding(s) of fact or law and/or how the alleged error impacts the conclusion of the LDE with respect to the allegation(s) at issue;
4. documents and other information not originally submitted regarding the allegation(s) shall not be accepted for review; and
5. reconsideration requests, including all documentation relevant to the reconsideration request, shall be received by the LDE no later than 10 calendar days after the date of receipt of the investigative report. Should the other party to the complaint wish to respond to the reconsideration request, the response shall be received by the LDE no later than 10 calendar days after the LDE received the original reconsideration request; and
6. reconsideration requests received by the LDE after the 10 calendar day deadline shall not be reviewed;
7. reconsideration requests received timely and that meet criteria established by this subsection shall be reviewed by a panel of individuals appointed by the division director and the LDE shall inform the complainant and the public agency of its determinations, in writing, within 30 calendar days from the date the LDE receives the written reconsideration request;
8. reconsideration requests by third parties shall not be accepted;
9. reconsideration requests shall not be used to delay or deny implementation of FAPE for a student with a disability;
10. implementation of any corrective actions required in the state's initial (pre-reconsideration) decision shall not be delayed pending the reconsideration process.
J. The LDE shall ensure effective implementation of the final decision, if needed, including:
1. technical assistance activities;
2. negotiations; and
3. corrective actions to achieve compliance.
K. Correction of Non-Compliance. If a complaint results in a finding of non-compliance, the public agency shall be required to document that it has taken corrective action as required by the complaint decision.
1. The LDE shall refer and recommend to BESE the delay or denial of funding or an offset of future funding for any LEA that, after due notice:
a. refuses or fails to submit requested documentation of corrective action; or
b. refuses or fails to take or complete required corrective action.
2. The state board shall provide reasonable notice and an opportunity for a hearing according to procedures set out in Education Division General Administrative Regulations (EDGAR) at 34 CFR 76.401 before the LDE delays, denies, or offsets the funding of any LEA under IDEA Part B.

La. Admin. Code tit. 28, § XLIII-153

Promulgated by the Board of Elementary and Secondary Education, LR 34:2047 (October 2008), amended LR 36:1500 (July 2010), Amended LR 46180 (2/1/2020).
AUTHORITY NOTE: Promulgated in accordance with R.S. 17:6 and 17:1941 et seq.