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Delay in AAC/Tech: When to File a State Complaint vs. Due Process

The IEP team’s acknowledgment that your child "cannot communicate wants and needs" while simultaneously failing to provide meaningful technology is a critical admission. Communication is a fundamental right under IDEA (Individuals with Disabilities Education Act), and a delay in providing necessary Assistive Technology (AT) can constitute a denial of FAPE (Free Appropriate Public Education).

Here is why you might file a State Compliance Complaint rather than Due Process right now:

  • The Difference:

    • Due Process is typically for when you disagree with the IEP team (e.g., they say he doesn't need a device, you say he does).

    • State Compliance Complaint is for when the school is not following the rules or not implementing what is already known to be needed (e.g., they admit he needs communication support but are "dragging their feet" or claiming "lack of resources").

  • "Lack of Resources" is Not a Defense:

    • Schools often claim they don't have the staff, devices, or funding to provide AT immediately. Legally, lack of resources is not a valid excuse for denying FAPE. If the IEP team agrees he cannot communicate, they are obligated to provide the tools to fix that now, not when their budget allows.

  • Compensatory Services:

    • If a complaint finds that the school delayed providing AT, your child may be owed compensatory services (e.g., extra speech therapy hours or training) to make up for the lost time he spent unable to communicate.

Actionable Steps Before Filing:

  1. Written Request: If you haven't already, send a letter/email explicitly requesting an "Assistive Technology (AT) Evaluation" to be completed within 60 days (timelines vary by state, but 60 days is standard under IDEA for initial evals).

  2. Document the "No": Ensure the IEP document specifically says "NO" under "Communicate Wants/Needs." This is your proof of need.

  3. File the State Complaint: If they miss the evaluation timeline or continue to delay after the evaluation confirms the need, file a State Complaint alleging a "failure to implement" the IEP and a denial of FAPE.

VillageED’s special education services page offers guidance for navigating disputes and AT requests: https://www.villageed.org/sped-services.