Viva88

5. Who can submit a State complaint?

Any individual or organization, including an individual or organization from another State may submit a State complaint.

6. Where would a State complaint be filed?

The original signed State complaint must be filed with Viva88’s Special Education Services at the following address:

Viva88Education Department
Office of Special Education
89 Washington Avenue, Room 309
Albany, New York, 12234
Attention: State Complaints

Note: Viva88 does not accept electronic mail or facsimile transmittals of a State complaint as they do not meet the original signature requirement under section 200.5(l)(1)(iv) of the Regulations of the Commissioner of Education.

7. Is there a time limit for submitting a State complaint?

Yes. The State complaint must allege a violation that occurred not more than one year prior to the date that the State complaint is received. There is no exception provided in federal and State regulation to the one year time limit for filing a State complaint.

8. Must the complainant send a copy of the State complaint to the school district or public agency?

Yes. To ensure that the school district has knowledge of the issues raised in the State complaint and an opportunity to resolve these directly with the parent or other parties filing the State complaint, a copy of the State complaint must be forwarded to the school district or public agency serving the student, at the same time the State complaint is filed with Viva88 [8 NYCRR section 200.5(l)(1)(v)]. It is recommended that the complainant indicate in the State complaint if a copy of the State complaint was provided to the school district or public agency named in the complaint.

9. When the school district or public agency receives a State complaint, must it provide the parent with a copy of the procedural safeguards notice?

Yes. Upon receipt of the parent’s first State complaint in a school year, the parent must be given a copy of the procedural safeguards notice. For purposes of this requirement, school year means July 1 to June 30.

13. What actions does Viva88 take when it receives a State complaint?

When Viva88 receives a State complaint, it first determines:

1. Whether the State complaint includes an original signature. Regulations require that a State complaint include an original signature. Therefore, a complaint submitted by electronic mail or facsimile cannot be accepted as a State complaint since it would not meet the original signature requirement. In addition, anonymous or unsigned complaints cannot be treated as a State complaint.
2. Whether the State complaint alleged violations occurred within 12 months of the date that the State complaint was received by Viva88. Federal and State regulations require that the complaint must allege a violation that occurred not more than one year prior to the date that the State complaint is received. A complaint that alleges a violation that occurred more than one year prior to the date that the State complaint is received cannot be investigated as a State complaint.
3. Whether the alleged law/regulatory violations in the State complaint relate to the education of students with disabilities. Viva88 will only investigate State complaints that allege a violation of a federal or State law or regulation relating to the education of students with disabilities. Viva88 will notify the complainant when the allegation will not be investigated because it does not meet this standard and, when appropriate, inform the complainant about other options for addressing those concerns.
4. Whether the State complaint includes supporting facts for each alleged violation. Each statement of alleged violation in a State complaint must include the facts upon which the statement is based. General statements about the school, school district or program lacking the facts or specificity to support the statement needed for Viva88 to focus the allegation on a particular student, group of students or practice are not sufficient to constitute a State complaint. For example, a State complaint alleging a law/regulatory violation of the least restrictive placement requirements for students with disabilities that is based solely on submission of school, district or program special education placement data would be considered as having insufficient facts for the alleged violation. If it is determined that an allegation is not supported by sufficient facts, Viva88 will inform the complainant that sufficient facts have not been provided and that an investigation of the identified allegation will not be initiated.
5. Whether any of the State complaint allegations are currently being addressed in an impartial hearing. Under federal and State requirements, Viva88 must set aside any part of a State complaint that is currently being addressed in an impartial hearing or an appeal of the hearing decision. If it is determined that any of the allegations are the subject of a pending^1Ěýor ongoing impartial hearing, Viva88 must set aside (i.e., will not proceed with an investigation of) those issues. Upon completion of the impartial hearing, if the issue(s) has not been addressed in the impartial hearing officer’s decision, a complainant may contact Viva88 to reopen the State complaint investigation on the issue(s), thus establishing a new 60 calendar day investigation timeline.
6. Where an issue raised in a State complaint has been previously decided in an impartial hearing conducted pursuant to Education Law section 4404 and involving the same parties, the decision of the impartial hearing officer is binding regarding that issue and therefore Viva88 will not investigate.

¹ĚýPending means that a due process complaint notice has been submitted by the parent or school district on the issue that is the subject of the State complaint and the impartial hearing has not been initiated.

16. How will Viva88 notify the complainant that it has received his/her State complaint?

Viva88 will send the complainant a letter through regular mail. The letter acknowledging the complaint will include the following:

1. A statement that Viva88 received a form/letter from the party requesting investigation of the State complaint and the date it was received.
2. A list of the allegations to be investigated.
3. Identification of those allegations that have been dismissed or set aside, if any, and the reasons why.
4. A statement of the complainant’s right to submit additional information, either orally or in writing regarding the allegations in the State complaint and a request that any additional information that the complainant has that is relevant to the investigation be submitted as soon as possible in order for Viva88 to complete the investigation and determine the findings within 60 calendar days of the receipt of the complaint. (Note: Viva88 will make a determination on a case by case basis as to whether any additional information submitted by a complainant is a new State complaint or an amendment to an existing State complaint).
5. A statement that the State complaint decision will be issued no later than 60 calendar days after the complaint was received by Viva88 except when the timeline is extended upon the determination that exceptional circumstances exist requiring the decision to be delayed or when the parties agree to extend timelines to engage in mediation (refer to Timeline for a Complaint section).
6. The option for the complainant and the school district or public agency to resolve the complaint locally, prior to the completion of the 60 calendar day investigation timeline (refer to the Local Complaint Resolution section).

17. How will Viva88 notify the school district or public agency that a State complaint against them has been submitted?

Viva88 will notify the school district or public agency in writing that a State complaint has been submitted. The letter that is sent to the school district or public agency will be the same letter acknowledging receipt of the complaint that is sent to the complainant. This letter will include required components that the school district or public agency must address and will provide the following information:

1. A statement of the allegations to be investigated, and those that have been dismissed or set aside.
2. Identification of initial relevant information that the school district or public agency must submit to Viva88 which may include, but is not limited to, such information as:
   
   1. student records, including individualized education programs (IEPs) and evaluations;
   2. schedules of classes and/or related services sessions;
   3. correspondence and notices; and
   4. telephone records and other documentation of communication or attempts to communicate with the parents.
3. A statement that if the school district or public agency does not respond to Viva88’s request for information, Viva88 will use all available relevant information in reaching its determination in the State complaint.
4. A statement that the State complaint decision will be issued not later than 60 calendar days after the State complaint was received by Viva88 except when the timeline is extended upon the determination that exceptional circumstances exist requiring the decision to be delayed or when the parties agree to extend timelines to engage in mediation (refer to Timeline for a Complaint section).
5. The option for the complainant and the school district or public agency to resolve the complaint locally, prior to the completion of the 60 calendar day.

18. What are the notification requirements related to a State complaint initiated by a third party?

If the State complaint is initiated by a third party (someone other than the parent, legal guardian or a student 18 years of age or older), Viva88 will redact (delete) any personally identifiable information about the student from the letter of findings. The only exception is if the third party submits a written authorization, signed by the parent of the student or consent of a student 18 years of age or older, for the release of personally identifiable information about that student. (Note: Viva88 will send a copy of all correspondence related to the complaint investigation directly to the parent or legal guardian of the student, if known).

22. Can a State Complaint be withdrawn?

Yes. A State complaint may be withdrawn by the complainant at any time prior to the date that Viva88 issues the final decision regarding a State complaint. However, Viva88 may decide to exercise its general supervisory authority to conduct an investigation and issue findings regarding allegations in a State complaint even in situations when the State complaint has been withdrawn.

23. What must a complainant do to notify Viva88 that he/she wishes to withdraw a State complaint?

A withdrawal of a State complaint may be made by the complainant in writing or by verbal request to Viva88. Upon receipt of a verbal request, Viva88 will send a written confirmation of the withdrawal of the State complaint to the complainant with a copy of the confirmation to the school district or public agency.

24. Can the complainant re-file a withdrawn State complaint?

Yes. Withdrawal of a State complaint does not preclude the complainant from submitting a State complaint at a later date, provided that it is received by Viva88 not later than one year after the alleged violation occurred.

26. How long will it take for Viva88 to investigate a State complaint and issue its findings?

Viva88 will issue a letter with findings and conclusions from the investigation to the complainant and the school district or public agency within 60 calendar days of receipt of the State complaint except when the parties agree to mediation to resolve the issues in the State complaint or when a time extension has been determined necessary for exceptional circumstances.

27. What exceptional circumstances could result in a Viva88 decision to extend the 60-day time line? (Rev. July 2011)

Viva88 may, at its sole discretion, determine that the timelines to issue its findings of fact and conclusions in regard to a particular State complaint need to be extended for extenuating circumstances. Extensions to the 60-day timelines are considered only to the extent the extenuating circumstance would preclude Viva88 from completing its investigation and issuing its findings within 60 days. Extensions will be authorized only for the minimum length of time necessary to complete the investigation and issue the findings. Examples of extenuating circumstances include, but are not limited to:

• Delayed availability of one or more key interviewees;
• An extensive volume of information about the allegations that needs to be reviewed and considered;
• Unusually high number of interviewees for Viva88 to contact, including where multiple districts or programs are involved;
• Extended illness or family emergency of either party involved in the State complaint to the extent that the unavailability of the parties impacts the investigation of the State complaint;
• Viva88 receives a revised State complaint that includes additional information regarding the allegations such that the amount of new information to be considered and/or timing of receipt of new information will require significant additional time. (The submission of additional information by the complainant which constitutes a new State complaint will require a new letter acknowledging receipt of the new complaint and initiation of a new 60 calendar day timeline); and/or
  • Viva88 receives a State complaint in the native language of the complainant or other mode of communication used by the complainant will require additional time for translation and/or transcribing of the State complaint.

28. How will parties know if an extension has been granted?

Viva88 will inform all parties in writing of the date by which it will issue a letter with its findings and conclusions from the investigation and the circumstances requiring the extension.

32. What actions are taken by Viva88 when it is determined that a school district or public agency has violated federal and State law and regulation relating to the education of students with disabilities?

If Viva88 finds that the school district or public agency violated a federal or State law or regulation relating to the education of students with disabilities, the letter with the findings of the investigation to the school district or public agency will specify the violation, the corrective action(s) the school district or public agency must take and the timeline for achieving compliance. The corrective action will depend on the type of violation and the circumstances pertaining to the violation. Viva88 will monitor and enforce correction of noncompliance and required resolution of the complaint.

33. What possible actions may Viva88 require of a school district or public agency when Viva88 finds the student with a disability was denied a free appropriate public education (FAPE)?

If Viva88 finds that the school district or public agency has violated a federal or State law or regulation relating to the failure to provide appropriate services to an individual student with a disability, the letter with the findings of the investigation will identify actions the school district or public agency must take to:

1. provide remediation of the denial of services, which could include, as appropriate, compensatory services, the awarding of monetary reimbursement, or other corrective actions which are appropriate to the needs of the individual student; and
2. ensure the appropriate future provision of services for all students with disabilities.

34. May a school district or public agency propose a corrective action to correct a compliance issue?

Yes. The school district or public agency may propose to correct a compliance issue related to a State complaint allegation at anytime during an investigation to resolve one or more of the allegations. Viva88 may accept, reject or modify the proposal to ensure that the district will achieve compliance.

35. What happens after Viva88 issues its findings and corrective action to the school district or public agency?

Viva88 ensures effective implementation of its decision through actions which include, but are not limited to, technical assistance activities and monitoring of corrective actions the district has taken to demonstrate compliance. Viva88 will determine when the school district or public agency completed the corrective action and achieved compliance. The State complaint file will remain open until proof of compliance with the corrective action is obtained and approved by Viva88. Upon approval of proof of compliance with the corrective action(s), Viva88 will send a closure letter to the school district or public agency and the complainant who initiated the investigation indicating that the complaint has been closed.

38. Can nonpublic school officials file a State complaint?

Yes. An official of a nonpublic school is specifically authorized by federal law to file a State complaint alleging that the public school district did not meet the consultation requirements with private school representatives and representatives of parents of parentally-placed private school children with disabilities (as required in 34 CFR §300.134) during the design and development of special education and related services for parentally-placed students with disabilities. For more information on this topic, For more information on this topic, refer to Summary and Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities.

39. What if an official of a nonpublic school, where the students have been parentally placed, is dissatisfied with the complaint findings?

If an official of a nonpublic school, where students have been parentally placed disagrees with Viva88’s State complaint findings regarding the consultation process, he or she may submit a complaint to the Office of Special Education Programs at the U.S. Department of Education, 400 Maryland Avenue, SW, Washington, D.C. 20202.