C.R.S. § 22-29.5-114: Training - technical assistance - enforcement - allegation - complaint - dismissal - corrective action - exhaustion of administrative remedies.

(1) The department may provide training and technical assistance to local education providers about the requirements of this article 29.5.

(2) The department has the authority to investigate and resolve complaints of alleged violations of this article 29.5 and the authority to monitor the implementation of the requirements of this article 29.5. This article 29.5 does not create new authority for matters involving the identification, evaluation, placement, or provision of a free education pursuant to an IEP.

(3) A complainant must allege violations that occurred within one calendar year before the date the complaint is filed with the department, or within sixty days following resolution or termination of the process described in subsection (6) of this section.

(4) The Colorado civil rights division shall not have jurisdiction over allegations or complaints that fall within the scope of this article 29.5. The Colorado civil rights division shall establish a system to ensure such allegations or complaints are referred to the department within ten days of receiving an allegation or complaint.

(5) The department shall dismiss an allegation in a complaint, or the entire complaint, if:

(a) (I) The allegation, on its face or as clarified, fails to state a violation of this article 29.5, when the allegation, on its face or as clarified, lacks sufficient factual detail, or when the allegation is so speculative, conclusory, or incoherent, that the department cannot reasonably infer that a violation of this article 29.5 occurred or may be occurring; or

(II) Prior to dismissing an allegation or complaint for one of the reasons specified in subsection (5)(a)(I) of this section, the department may request from the complainant information to further assess whether the allegation or complaint should be dismissed for a reason specified in subsection (5)(a)(I) of this section. The complainant has fourteen days from the date of the department's request to provide the requested information. The department may dismiss an allegation or the complaint if the information is not received within fourteen days of the department's request, if the information does not establish jurisdiction, or if the information does not sufficiently address the factors in subsection (5)(a)(I) of this section, in the department's discretion.

(b) Based on all of the facts provided by the complainant, the department cannot reasonably conclude the local education provider has violated this article 29.5;

(c) The allegation or complaint is not timely filed with the department;

(d) The complaint is filed against a person or entity that is not a local education provider;

(e) The death of the complainant makes it impossible to fully investigate the allegation;

(f) The death of the complainant forecloses the possibility of individual relief;

(g) The same or similar allegation or complaint has been filed with or is being investigated by another agency, including the department's dispute resolution office or through the local education provider's internal grievance process. A complainant may file or refile an allegation or complaint with the department within sixty days after the termination of the department's dispute resolution office's process or the local education provider's internal grievance process. The department shall review whether the other agency's process met acceptable legal standards or may choose to investigate on its own.

(h) The same or similar allegation or complaint, based on the same facts, has already been resolved by the department, another agency, or through the district's internal grievance process, using acceptable legal standards;

(i) The same or similar allegation or complaint, based on the same facts, has already been filed in state or federal court. If the court case ends without a decision on the merits or a settlement, the complaint may be filed or refiled with the department within sixty days of the end of the court case. For purposes of this section, a dismissal with prejudice is considered a decision on the merits and a dismissal without prejudice is not a decision on the merits.

(j) The department obtains credible information indicating that the allegation or complaint is resolved and therefore no longer appropriate for investigation pursuant to this article 29.5;

(k) A complaint is filed against a local education provider that raises the same or similar allegation based on the same facts against the same local education provider that was previously dismissed or closed by the department;

(l) The department recently investigated or is currently investigating the same or similar allegation based on the same facts involving the same local education provider;

(m) The complainant withdraws the complaint containing the allegation; or

(n) The allegation or complaint is moot or unripe.

(6) (a) The department may dismiss an allegation or complaint if:

(I) The department's ability to complete an investigation is substantially impaired by the complainant's refusal to provide information that is reasonably accessible to the complainant and is necessary for investigation of the complaint. The department shall include documentation in the case file of its efforts to contact the complainant by phone, in writing, or via email to request the necessary information and of the complainant's refusal to provide the information.

(II) The department's ability to complete an investigation is substantially impaired by the complainant's failure to timely respond to the department's communications. The department shall include documentation in the case file of its unsuccessful efforts to contact the complainant by phone or in writing to request the necessary information.

(III) The allegation or complaint alleges a violation for which no relief is available.

(b) The department has the sole discretion to determine whether dismissal criteria are met.

(7) The department has the authority to enforce decisions issued pursuant to this section and require a local education provider to take corrective action if there is a finding of noncompliance with this article 29.5. In determining whether a local education provider has complied with this article 29.5, the department may rely on interpretations by federal courts and agencies of section 504 and the ADA. A local education provider shall correct its noncompliance with this article 29.5 as soon as possible and within a reasonable time frame that is specified by the department in an order.

(8) No later than December 31, 2026, the state board of education may adopt rules to establish the definition of any term not specifically defined in this article 29.5; uniform and timely methods of complaint resolution, including rules providing for the process of filing a complaint, whether voluntary mediation is available, or any other relief available prior to the conclusion of a finding of noncompliance; and whether written consent to investigate an allegation is required. Complaints may be filed by a parent, guardian, student, or third party. A third party may only file a complaint alleging violations of this article 29.5 if the allegations are systemic in nature or if the complaint is on behalf of an individual student the third party is representing as an attorney or advocate. For the complaint process, the timeline shall be no longer than one hundred eighty days from the date of filing to the date of resolution, with the ability to pause the timeline for up to sixty days pending attempted resolution through other methods, including voluntary mediation.

(9) (a) If the department is accepting complaints, a parent, guardian, student, or third party may file a complaint with the department alleging a violation of this article 29.5 only after:

(I) Pursuing resolution of the same allegation through the local education provider's disability rights grievance process described in section 22-29.5-104; and

(II) (A) The local education provider issues a final decision; or

(B) The local education provider's final decision has not been provided to the complainant within sixty days of the local education provider's receipt of the complaint.

(b) (I) The requirements of subsection (9)(a) of this section may be waived by the department if:

(A) The complainant demonstrates that using the local education provider's disability rights grievance process would be futile or likely cause irreparable harm to the student; or

(B) The local education provider does not have a prompt and equitable or readily available disability rights grievance process.

(II) For purposes of this article 29.5, to be considered futile, the complainant must show that pursuing resolution with the local education provider would be pointless or ineffective in providing relief. Examples where futility may apply include:

(A) The local education provider lacks the authority to grant the relief sought;

(B) The local education provider's process is biased or unfair, and thus unlikely to result in a fair outcome; however, the complaint recipient and the alleged discriminatory entity both being the local education provider, alone, is insufficient to demonstrate bias or unfairness;

(C) There is a pattern of the local education provider failing to respond in a timely or appropriate manner to complaints; or

(D) The local education provider has clearly demonstrated unwillingness to comply with or participate in the process in good faith.

(10) Nothing in this article 29.5 shall be construed to affect any administrative exhaustion requirements of federal law, including the IDEA and section 504.

(11) No public entity shall assert any provision of this article 29.5 as a defense to a claim brought pursuant to federal law, including pursuant to the IDEA and section 504.