California Department of Education Proposes New Uniform Complaint Procedure Regulations

04.22.2019

On March 29, 2019, the California Department of Education (CDE) proposed sweeping changes to state regulations on Uniform Complaint Procedures (UCP). The proposal would overhaul the regulations and separate some complaints into different paths. The amendments are subject to a 30-day comment period, ending with a public hearing on May 13, 2019 in Sacramento.

All local educational agencies (LEAs) are required to adopt a UCP under Title 5 of the California Code of Regulations. The UCP covers complaints about various federal and state educational programs and complaints about discrimination, harassment, intimidation, and bullying, among other specified topics. Over the years, other complaints have been added under the UCP umbrella, with such diverse subjects as LCAP compliance, lactating students, pupil fees, and the rights of students in foster care.

According to CDE, the new regulations are needed to enumerate activities or programs that are subject to the UCP; reference federal provisions governing special education and child nutrition program complaints; clarify timelines; update terminology; and “achieve more efficient administration.” (See CDE Initial Statement of Reasons – Uniform Complaint Procedures.)

The new regulations will require changes to complaint procedures, which are typically found in school districts’ board policies and administrative regulations. Key provisions are summarized below.

UCP Scope and Processes

CDE proposes to add a new article (3200-3205) to Title 5 that would incorporate federal regulations for processing complaints about special education programs. These complaints would no longer be subject to the UCP. Another new article (4690-4694) would create a separate complaint framework for state preschool health and safety issues for LEAs that are exempt from licensing, which recently became subject to the UCP through the addition of Education Code section 8235.5. A third new article (15580-15584) would be added to separately address complaints relating to child nutrition programs.

LEAs would be required to explain their complaint procedures in a “user-friendly manner” to students, parents, and employees in annual notices, and may make the notices available on their websites. Each LEA must have a process for documenting receipt of complaints.

The new regulations would establish a general one-year statute of limitations period for all complaints except those alleging discrimination, harassment, intimidation, and bullying, to which the six-month statute of limitations continues to apply. The revisions would preclude third parties from filing complaints on behalf of individual students by limiting such filings to the student involved or his or her authorized representative.

The proposed regulations would substantially modify the appeal process. A complainant would have 30 days from the date of an LEA’s decision (as opposed to the current 15 days) to file a written appeal with CDE. The two existing bases for appeal — “incorrect facts” or “misapplied law” — would be revised to “material findings of fact supported by substantial evidence” or “legal conclusion is inconsistent with the law.” Three new bases for appeal would be added: failure to follow complaint procedures; lack of material findings of fact necessary to reach a conclusion of law; and lack of proper remedy. The amended regulations would impose a 10-day timeline after notification of an appeal for the LEA to forward to the CDE all information and documents related to the complaint. There appears to be no grace period for meeting this timeline.

Special Education Complaints

Consistent with federal law, the proposed regulations limit special education-related complaints to allegations occurring within one year of the complaint. The proposed regulations require CDE to investigate if a complaint alleges denial of a free appropriate public education based on an LEA’s failure to provide the placement or services called for in a settlement agreement.

Child Nutrition Complaints

The regulations address complaints alleging that an LEA or “program operator” violated laws or regulations relating to Child Nutrition Programs (established pursuant to Education Code sections 49490 through 49570, and other nutrition and food programs regulated by federal law). Allegations of discrimination in these programs based on race, color, national origin, sex, or disability would be referred to the U.S. Department of Agriculture.

Under the new regulations, CDE would directly intervene and investigate complaints involving meal counting and claiming, reimbursable meals, eligibility of child or adult, and violations of Education Code sections 49550 through 49564.5. If CDE disallows reimbursement as a result of a complaint, an LEA has the right to appeal.

State Preschool Health and Safety Issues

The proposed regulations revise the complaint process for health and safety concerns in state preschools. In LEAs that are exempt from licensing, written complaints would be filed with the LEA’s preschool program administrator or designee, who must commence an investigation within 10 calendar days, remedy a “valid complaint” within 30 working days, and issue a report to the complainant of the resolution of the complaint within 45 working days.

A complainant who is not satisfied with the resolution of the complaint may appeal to “the governing board or body or authorized designee” of the LEA at a regularly scheduled hearing. Alternatively, the complainant may appeal to the State Superintendent for intervention and investigation within 30 days of the date of the LEA’s written report.

LEAs must, on a quarterly basis, report the nature and resolution of state preschool health and safety complaints to their local governing board and the county superintendent of schools. Summaries of the data must be reported at a regular public meeting every quarter and include the number of complaints by general subject area with the number of resolved and unresolved complaints. This reporting requirement does not apply to other types of uniform complaints.

Significance to School Districts

The new regulations will take effect, in their proposed form or with revisions, sometime after the comment period ends on May 13, 2019. If these regulations are adopted, school districts should promptly revise their UCP policies and regulations and their annual notices. Complaint protocols should be updated to reflect the new scope and requirements of the UCP. Supplementary training for staff may be appropriate.

Additionally, districts must be even more vigilant, responsive, and proactive in addressing complaints. Appeals may now allege an LEA’s failure to follow its own complaint procedures, and agencies must comply with a cumbersome 10-day deadline to respond to CDE when complainants appeal their decisions.

We will publish an update when CDE adopts final regulations revising the UCP. In the meantime, if you have questions about the proposed regulations, please contact one of the authors or any of the attorneys in our Education Law practice group.