(a) Except for complaints under sections 4680, 4681, 4682 and 4683 regarding instructional materials, teacher vacancies or misassignments, and condition of a facility, the CDE shall directly intervene without waiting for LEA investigation if one or more of the following situations exist:
(1) The complaint includes an allegation, and the CDE verifies, that an LEA failed to comply with the complaint procedures required by this Chapter and its local rules and regulations, including, but not limited to, the failure or refusal of the LEA to cooperate with the investigation;
(2) The complaint relates to an agency that is not an LEA funded through the Child Development or Child Nutrition Programs;
(3) The complainant requests anonymity because he or she would be in danger of retaliation and would suffer immediate and irreparable harm if he or she filed a complaint with the LEA (except for complaints regarding pupil fees, which may be filed anonymously with the principal of a public school);
(4) The complainant alleges that the LEA failed or refused to implement the final decision resulting from its local investigation or local mediation agreement;
(5) The complainant alleges and the CDE verifies that through no fault of the complainant, no action has been taken by the LEA within 60 calendar days of the date the complaint was filed. Prior to direct intervention, the CDE shall attempt to work with the LEA to allow it to complete the investigation and issue a Decision.
(6) The complainant alleges and the CDE verifies that he or she would suffer immediate and irreparable harm as a result of an application of a district-wide policy that is in conflict with state or federal law covered by this Chapter, and that filing a complaint with the LEA would be futile.
(7) For complaints relating to special education, any one of the following shall be a condition for direct state intervention:
(A) The complainant alleges that a public agency, other than an LEA, as specified in Government Code section 7570 et seq., fails or refuses to comply with an applicable law or regulation relating to the provision of free appropriate public education to individuals with disabilities;
(B) The complainant alleges that the LEA or public agency fails or refuses to comply with the due process procedures established pursuant to federal and state law and regulation; or has failed or refused to implement a due process hearing order;
(C) The complainant alleges facts that indicate that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a child or group of children is threatened.
(D) The complainant alleges that an individual with a disability is not receiving the special education or related services specified in his or her individualized educational program (IEP).
(E) The complaint involves a violation of federal law governing special education, 20 U.S.C. section 1400 et seq., or its implementing regulations.
(b) The complaint shall identify the basis, as described in subdivision
(a) above, for filing the complaint directly to the CDE. The complainant must present the CDE with clear and verifiable evidence that supports the basis for the direct filing, except as in subdivision (a)(7).
Authority cited:
Education Code 221.1
Education Code 33031
Government Code 11138
Reference:
Education Code 200
Education Code 220
Education Code 49013
Government Code 11135
Government Code 11136
Government Code 11138
34 C.F.R. 106.8
34 C.F.R. 299.10(a)(2)
(Amended by Register 2013, No. 38.)