POLICY LETTER: May 13, 2019 to Zirkel

400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202 -2600 www.ed.gov The Department of Education’s mission is to promote student achievement and prepar ation for global competiveness by fostering educational excellence and ensuring equal access. UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES May 13, 2019 Perry A. Zirkel, Ph.D., J.D. University Professor Emeritus of Education and Law Lehigh University Department of Education and Human Services 111 Research Drive Bethlehem, Pennsylvania 18015 -4793 Dear Dr. Zirkel: This letter is in response to your electronic mail (email) addressed to Lisa Pagano of the U.S. Department of Education (Department), Office of Spe cial Education Programs (OSEP) . In that correspondence, you asked a series of questions regarding the implementation of the Individuals with Disabilities Education Act (IDEA) State complaint and due process hearing procedures . Each of your questions are answered below. We apologize for the delay in providing this response. We note that section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other statements that establish a rule that is required for compliance with, and eligibi lity under, IDEA without following the rulemaking requirements of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as informal guidance and is not legally binding. This response represents an interpretation by the Department of the requirements of IDEA in the context of the specific facts presented and does not establish a policy or rule that would apply in all circumstances. Question 1 : Does the State complaint process have jurisdiction and remedial authority for tuition reimbursement claims? If not, what is the specific scope of the express authorization for “monetary reimbursement” in 34 C.F.R. § 300.151(b)(1) ? Response : Ye s. T here is nothing in the IDEA regulations th at limit s a State educational agency’s (SEA’s ) authority to award tuition reimbursement if the SEA determines it is an appropriate remedy in resolving an IDEA complaint in which the SEA found the denial of appropriate services. In Question B -10 of its Ques tions and Answers on IDEA Part B Dispute Resolution Procedures ,1 (hereinafter, “ Q&A ”), OSEP states that if there is a 1 A copy of this document is available at: https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafina lm emo -7-23 -13.pdf . finding in a State complaint that a child or group of children has been denied a free appropriate public education (FAPE), “an SEA, pursuant to its general supervisory authority, has broad flexibility to determine appropriate remedies to address the denial of appropriate services to an individual child or group of children.” Accordingly, the resolution of each State complaint is based on the specific facts and circumstances of the complaint and an SEA has broad discretion w hen determining the appropriate remedy. We also note that there is nothing in the Part B regulations that either requires or prohibits an SEA from awarding tuition re imbursement as a remedy for a State complaint where the SEA determines it is necessary to address the denial of appropriate services consistent with IDEA requirements. An SEA could order tuition reimbursement in resolving an IDEA State complaint to address the denial of appropriate services notwithstanding the requirements in 20 U.S.C. § 1412(a)(10)(C)(ii) and 34 C.F.R. § 300.148(c) -(reimbursement for private school placement). Question 2 : Does the specific express authorization for hearing officers to addr ess issues arising from disciplinary changes in placement ( 34 C.F.R. § 300.532(a) -(b) ) exclude these issues from the jurisdiction of the State complaint process? Response : No. The express authorization for hearing officers to hear appeals from parents of decisions regarding disciplinary changes of placement under 34 C.F.R. §§ 300.530 and 300.531 and the manifestation determination under 34 C.F.R. § 300.530(e) would not limit an SEA’s authority to resolve the same issues under the State complaint procedures. We also find no other provision in IDEA and its implementing regulations that would limit the State’s authority in resolving an IDEA State complaint on these matters. Specifically, the State complaint procedures are available to a parent who alleges that a public agency has violated a requirement of Part B of IDEA or the Part B regulations, and these include the disciplinary provisions in 34 C.F.R. §§ 300.530 -300.536. Question 3 : Do the two specifically authorized hearing officer remedies for disciplinary chang es in placement at 34 C.F.R. § 300.532(b)(2) preclude the hearing officer from alternatively , or additionally , ordering other remedies, such as compensatory education services, for these particular issues? Response : No. IDEA does not preclude hearing officers conducting due process hearings under 34 C.F.R. § 300.511(a) on expedited due process complaints filed under 34 C.F.R. § 300.532(a) from ordering relief that is appropriate to remedy the alleged violations based on the facts and circumstances of e ach individual complaint. This is so even though 34 C.F.R. § 300.532(b)(2) identifies the specific actions that a hearing officer may take in resolving an expedited due process complaint. We note that a hearing on an expedited due process complaint is trea ted as an impartial due process hearing, which is subject to the hearing decision requirements in 34 C.F.R.§ 300.513. Specifically, in matters alleging a violation (an improper manifestation determination), a hearing officer may find that a child did not r eceive FAPE if the action caused a deprivation of educational benefit. See 34 C.F.R. § 300.513(a)(2)(iii). For example, as a result of an expedited due process complaint under 34 C.F.R. § 300.532(a), a hearing officer could conclude that a local educationa l agency (LEA) improperly determined that the child’s behavior was not a manifestation of his or her disability. The hearing officer could further conclude that the child should not have been subjected to the disciplinary removal resulting from the imprope r manifestation determination and that as a result, was denied required instruction and services. In such circumstances, to remedy the violation, the hearing officer, in addition to returning the child to the placement from which she or he was removed cons istent with 34 C.F.R. § 300.532(b)(2)(i), could order the public agency to provide compensatory services to remedy the loss of instruction and services to the child. Question 4: Does the State’s required complaint procedures system have the obligation to enforce a hearing officer’s decision that finds the district committed procedural violations that did not result in a denial [of] FAPE and the hearing decision orders only proce dural compliance under 34 C.F.R. § 300.513(a)(3)? Response : Yes. Under 34 C.F.R. § 300.152(c)(3), a complaint alleging a public agency’s failure to implement a due process hearing decision must be resolved by the SEA. Further, in its Q&A , OSEP addressed th e SEA’s responsibility after a due process hearing is issued. See Question C - 26. The SEA, pursuant to its general supervisory responsibility under 34 C.F.R. §§ 300.149 and 300.600 must ensure that a hearing officer’s decision is implemented in a timely man ner, unless either party appeals the decision. This is true even if the hearing officer’s decision includes only actions to ensure procedural violations do not recur and no child -specific action is ordered. An SEA should review hearing officer determinatio ns as part of its oversight of the State’s IDEA due process system. Such a review can help the SEA identify hearing officer training needs, inform the State’s monitoring of its LEAs, and detect LEA training and technical assistance needs. If you have any f urther questions, please do not hesitate to contact Ms. Pagano at 202 -245 -7413 or by email at Lisa.Pagano@ed.gov . Sincerely, /s/ Laurie VanderPloeg Director Office of Special Education Programs