Caption: Modified appeals procedure
relating to special education complaint investigations.
Order No.: ODE 6-2011
Filed with Sec. of
Certified to be
Rules Amended: 581-001-0005, 581-015-2030
Subject: Generally the Superintendent of Public Instruction
allows a person entitled to judicial review of a final order to request
reconsideration of a final order issued by the Superintendent. However, the
Department recently was notified by the federal Office of Special Education
Programs that for those orders relating to special education complaint
investigations this allowance violates the federal Individuals with
Disabilities Act. The rule amendments will bring Oregon into compliance with
Rules Coordinator: Diane Roth—(503) 947-5791
Model Rules of Procedure
Pursuant to the provisions of ORS 183.341, the State
Board of Education adopts the Attorney General’s Model Rules of Procedure under
the Administrative Procedure Act in effect on January 1, 2006, except for
special education due process hearings authorized under ORS 343.165, and
special education complaint investigations under ORS 343.041(3), which shall be
heard in accordance with rules of the State Board of Education implementing the
federal law, Individuals with Disabilities Education Act, in effect as of
December 3, 2004.
[ED. NOTE: The full text of the
Attorney General’s Model Rules of Procedure is available from the office of the
Attorney General or the Department of Education.]
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.341
Hist.: 1EB 2, f. 12-22-58; 1EB
125, f. 11-4-71, ef. 11-15-71; 1EB 160, f. 11-2-73, ef. 11-25-73; Renumbered
from 581-061-0035, 4-1-76; 1EB 222, f. 3-22-76, ef. 4-1-76; 1EB 14-1978, f.
& ef. 4-3-78; 1EB 7-1980, f. & ef. 4-17-80; 1EB 20-1981(Temp), f.
12-29-81, ef. 12-31-81; 1EB 11-1982, f. & ef. 3-24-82; 1EB 2-1984, f.
2-17-84, ef. 5-8-84; 1EB 22-1986, f. & ef. 7-14-86; EB 2-1995, f. &
cert. ef. 1-24-95; ODE 2-2006(Temp), f. & cert. ef. 2-14-06 thru 8-1-06; Administrative
correction 8-22-06; ODE 4-2007, f. & cert. ef. 2-21-07; ODE 6-2011, f.
& cert. ef. 4-22-11
Procedures for Complaints as
Required by IDEA Regulations
(1) An organization or individual, including an
organization or individual from another state, may file with the State
Superintendent of Public Instruction a written, signed complaint that the
Department, or a sub grantee, including but not limited to a regional program,
an education service district or a local education agency is violating or has
violated the Individuals with Disabilities Education Act or regulations under
(2) The complainant must send a copy of the complaint
to the public agency serving the child at the same time the complainant files
the complaint with the Department.
(3) Upon receipt of a complaint under this provision,
the Department will provide a copy of the Notice of Procedural Safeguards to a
parent or adult student who files a complaint.
(4) If a complaint alleges violations outside the scope
of the Individuals with Disabilities Education Act, the complainant will be
informed of alternative procedures that are available to address the
(5) The complaint must allege a violation that occurred
not more than one year before the date that the complaint is received by the
(6) The complaint must include the facts on which the
complaint is based. If the facts as alleged by the complainant would be
considered a violation of the Individuals with Disabilities Education Act:
(a) The Superintendent will request the public agency
to respond to the allegations. The Superintendent (or designee) may also
initiate attempts to resolve the complaint through mediation or alternative
dispute resolution, including local resolution.
(b) The respondent must respond to the allegations and
furnish any information or documents requested by the Superintendent within ten
business days from the receipt of request for response from the Superintendent
unless another time period is specified by the Superintendent. At the same
time, the respondent must send a copy of the response and documents to the
complainant. If the complainant does not otherwise have access to confidential
information in the response, the respondent must provide the complainant with
the non-confidential portion(s) of the response.
(7) The Superintendent will give the complainant the
opportunity to submit additional information, either orally or in writing,
about the allegations in the complaint or the public agency’s response. The
complainant must provide a copy of any further written information to the
public agency that is the subject of the complaint, unless it would be a
hardship to do so. In those situations, the Department will provide a copy of
the written information to the public agency.
(8) The Superintendent will review all of the written
information submitted by the complainant and the public agency to resolve the
allegations in the complaint.
(9) The Superintendent may conduct further
investigation, such as telephone or onsite interviews, to the extent necessary
to resolve the complaint allegations.
(10) If a written complaint is received that is also
the subject of a due process hearing under OAR 581-015-2345, or contains
multiple issues of which one or more are part of that hearing, the
Superintendent will set aside any part of the complaint that is being addressed
in the due process hearing, until the conclusion of the hearing. Any issue in
the complaint that is not a part of the due process hearing will be resolved
using the time limit and procedures in this rule.
(11) If an issue raised in a complaint has previously
been decided in a due process hearing involving the same parties, the hearing
decision is binding and the Superintendent will inform the complainant to that
effect. A complaint alleging a school district’s failure to implement a due
process decision will be resolved by the Superintendent.
(12) The Superintendent will issue a written decision
that addresses each allegation in the complaint and contains findings of fact,
conclusions, and reasons for the Department’s final decision within 60 days of
receipt of the complaint unless:
(a) Exceptional circumstances related to the complaint
require an extension; or
(b) The complainant and public agency agree in writing
to extend the time to try mediation or local resolution.
(13) If the Superintendent finds a violation, the
Superintendent’s written decision will include any necessary corrective action
to be undertaken as well as any documentation to be supplied by any party to
ensure that the corrective action has occurred. If the decision is that a
school district has failed to provide appropriate services, the Superintendent
(a) How to remediate the failure to provide those
services, including, as appropriate, compensatory education, monetary
reimbursement or other corrective action appropriate to the needs of the child;
(b) Appropriate future provision of services for all
children with disabilities.
(14)(a) Parties may seek judicial review of the final
order under ORS 183.484. Judicial review may be obtained by filing a petition
for review within 60 days of service of the final order with the Marion County
Circuit Court or with the Circuit Court for the County where the party resides.
(b) Notwithstanding OAR 137-004-0080, a person entitled
to judicial review of the final order may not request reconsideration of the
final order by the Superintendent.
(15) Corrective action ordered by the Superintendent
must be completed within the timelines established in the final order unless
another time period is specified by the Department.
(16) At any time during the pendency of the complaint,
if the Superintendent determines that there is a strong likelihood that the
respondent has significantly breached the Individuals with Disabilities
Education Act and that delay may cause irreparable harm, the Superintendent may
order interim relief.
(17) If the respondent refuses to voluntarily comply
with a plan of correction when so ordered, the Superintendent may take one or
more of following actions:
(a) Disapprove in whole or part, the respondent’s
application for federal funding;
(b) Withhold or terminate further assistance to the
respondent for an approved project;
(c) Suspend payments, under an approved project, to a
(d) Order, in accordance with a final state audit
resolution determination, the repayment of specified federal funds; and
(e) Withhold all or part of a district’s basic school
support in accordance with ORS 327.103.
(18) Before the Superintendent denies or withholds
funding or orders reimbursement as provided in Section (17) of this rule, the
Superintendent will notify the respondent of the right to request a hearing in
accordance with ORS 183.415.
(a) The hearing request must be made to the
Superintendent within 30 days of receiving notice;
(b) The Superintendent will appoint a hearings officer
who will conduct the hearing in accordance with ORS 183.413 to 183.470;
(c) The burden of proof at the hearing is on the
(d) The Superintendent’s decision is final, subject to
appeal to the United States Secretary of Education or the Oregon Court of
(19) No person may be subject to retaliation or
discrimination for having filed or participated in this complaint procedure.
Any person who believes that she or he has been subject to retaliation or
discrimination may file a complaint under this rule with the Superintendent.
Hist.: 1EB 28-1980, f. & ef.
12-23-80; EB 26-1987(Temp), f. & ef. 11-17-87; EB 22-1988, f. & cert.
ef. 5-24-88; EB 32-1988, f. & cert. ef. 8-3-88; EB 44-1990, f. & cert.
ef. 9-12-90; EB 35-1992(Temp), f. & cert. ef. 11-24-92; EB 8-1993, f. &
cert. ef. 3-25-93; ODE 15-1999, f. & cert. ef. 9-24-99, Renumbered from
581-001-0010; ODE 29-2000, f. & cert. ef. 12-11-00; ODE 2-2003, f. &
cert. ef. 3-10-03; Renumbered from 581-015-0054, ODE 10-2007, f. & cert.
ef. 4-25-07; ODE 6-2011, f. & cert. ef. 4-22-11
Notes 1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.