Phew! It’s the day after graduation, and your school district is finally off the hook for a potential state complaint you have been fearing the legal guardian of a student with disabilities would file against the district for months. Not so fast! On March 30, 2023, the Office of Special Education Programs (OSEP) (part of the U.S. Department of Education) released a policy letter relating to the rights of students who have graduated. Letter to Oettinger, which is dated March 2, 2023, addresses the following issues:  

(1) Must a State Educational Agency (SEA) resolve a complaint if the child who is the subject of the complaint has graduated? 

(2) Must an SEA resolve a complaint that alleges systemic noncompliance based on facts related to a child who has graduated?  

According to OSEP, the answer to both questions is “yes,” so long as the complaint meets the requirements for filing a state complaint under the Individuals with Disabilities Education Act (IDEA), including the one year statute of limitations. OSEP explained that the state complaint procedure is a “powerful tool to address noncompliance with Part B of IDEA and its implementing regulations in a manner that both supports and protects the interests of children with disabilities and their parents and facilitates ongoing compliance by the State and its public agencies with the IDEA and its implementing regulations.” Accordingly, OSEP advised that such complaints are not foreclosed by a student’s graduation.  

OSEP provided two examples of the types of complaints an SEA, which, for example, is the Texas Education Agency in Texas, might receive and be obligated to address, notwithstanding a student’s graduation. A parent could file a state complaint alleging that their child’s IEP was not implemented. If the SEA investigated and substantiated the claim, the SEA could provide relief in the form of compensatory education or reimbursement, even if the student had already graduated with a regular diploma. In a second example, OSEP noted that a parent could allege that the district systemically failed to provide appropriate notice of IEP meetings. If the parent had nonetheless attended the student’s IEP meetings, the SEA would likely not provide any individual relief to the student but would require corrective action by the district to ensure appropriate notice in the future.   

With graduation around the corner, this Letter serves as a friendly reminder to school districts that responsibilities relating to students do not automatically terminate upon graduation. In Texas, for example, adult students or the legal guardians of students with disabilities who have graduated may file a due process complaint for up to two years following graduation or a state complaint with the Texas Education Agency for up to one year following graduation.  

For this reason, teachers and services providers must maintain students’ work samples, as well as records of communications with the students and their parents, for at least two years following graduation. It is important that school districts be aware of state laws regarding retention of student records following the cessation of services as well. For example, in Texas, school districts must maintain records of each student referred to or receiving special education services—including referral, assessment, and reevaluation reports, enrollment and eligibility forms, ARD and transitional planning committee documentation, IEPs and transition plans, parental consent forms for testing and placement, documentation of services (such as services logs), and other records of services required under federal and state regulations—for 5 years following the cessation of services.   

Special education administrators should encourage campus administrators to remind all staff providing services to students with disabilities, including special education teachers, general education teachers, and other service providers, of these maintenance requirements prior to the end of the school year. Furthermore, special education administrators shall work with school administrators to develop a process for collecting and maintaining this documentation if the school district does not already have such processes in place. Maintaining relevant records will enable school districts to properly defend themselves against future special education complaints brought against the district by students who have already graduated.  

For more information regarding this OSEP guidance, students’ rights following graduation, or maintenance of special education documentation, contact the author of this post or any member of the Thompson & Horton Special Education Team.