California OAH special education order · February 4, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013010643 · ALJ Robert Helfand
OAH found Student's complaint sufficient because its specific allegations about class ratio, speech therapy, assistive technology, and occupational therapy gave the District enough notice to respond.
Summary
Student, who has cerebral palsy and is eligible for special education as orthopedically impaired, filed a complaint alleging the District denied a FAPE since the September 2011 IEP. The District filed a Notice of Insufficiency, along with a response and a separate motion to dismiss that this order did not decide. OAH found the complaint sufficient. Student's specific claims about the special day class's teacher-to-student ratio, inadequate speech and language therapy, missing assistive technology services and assessments, and too little occupational therapy put the District on notice of the issues. All mediation, prehearing conference, and hearing dates were confirmed.
Why it matters
A complaint framed as one broad FAPE issue can still be sufficient if it lists specific problems with services and placement. OAH reads complaints liberally, so concrete facts about each deficient service help a complaint survive a sufficiency challenge.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)
- Ed. Code § 56502
- Sen. Rep. No. 108-185
- 71 Fed.Reg. 46540-46541, 46699
- Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F.Supp.2d 1248
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENTS ON BEHALF OF STUDENT, OAH CASE NO. 2013010643
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
CUPERTINO UNION SCHOOL COMPLAINT
DISTRICT.
On January 22, 2013 Parents on behalf of Student (Student) filed a Due Process Hearing Request 1 (complaint) naming the Cupertino Union School District (District) as respondent. The complaint contains a single issue that the District, since the September 28, 2011 Individualized Education Program (IEP), has failed to provide Student with a free appropriate public education (FAPE).
On February 1, 2013, the District filed a Notice of Insufficiency (NOI) as to Student’s complaint and simultaneously filed a Response to the complaint and a motion to dismiss.
This order only involves the NOI.
APPLICABLE LAW
The named parties to a due process hearing request have the right to challenge the sufficiency of the complaint. 2 The party filing the complaint is not entitled to a hearing unless the complaint meets the requirements of Title 20 United States Code section 1415(b)(7)(A).
A complaint is sufficient if it contains: (1) a description of the nature of the problem of the child relating to the proposed initiation or change concerning the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (FAPE) to the child; (2) facts relating to the problem; and (3) a proposed 1 A request for a due process hearing under Education Code section 56502 is the due process complaint notice required under Title 20 United States Code section 1415(b)(7)(A).
2 20 U.S.C. § 1415(b) & (c).
resolution of the problem to the extent known and available to the party at the time. 3 These requirements prevent vague and confusing complaints, and promote fairness by providing the named parties with sufficient information to know how to prepare for the hearing and how to participate in resolution sessions and mediation. 4 The complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” 5 The pleading requirements should be liberally construed in light of the broad remedial purposes of the IDEA and the relative informality of the due process hearings it authorizes. 6 Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge. 7
DISCUSSION
Student alleges he is eligible for special education under the category of Orthopedic Impaired as he suffers from cerebral palsy. He contends that the District deprived him of a FAPE since the September 25, 2011 IEP because the District failed to offer Student a program to meet his unique needs. Student specifically alleges that the County special day class (SDC), provided by the District, is not appropriate to meet his unique needs because (1)
he requires individualized instruction because of his major impairments and acute communication deficits and that the SDC has a teacher: student ratio of greater than two-to- one; (2) the speech and language therapy provided is not appropriate in that one 20 minute individual session and one 30 minute group session are not appropriate to permit Student to make progress on his IEP speech and language related goals; (3) the District has failed to provide assistive technology services or alternative assessments as Student has large communication deficits and has failed to make progress on his annual IEP goals; and (5) the 3 20 U.S.C. § 1415(b)(7)(A)(ii)(III) & (IV).
4 See, H.R.Rep. No. 108-77, 1st Sess. (2003), p. 115; Sen. Rep. No. 108-185, 1st Sess. (2003), pp. 34-35.
5 Sen. Rep. No. 108-185, supra, at p. 34.
6 Alexandra R. v. Brookline School Dist. (D.N.H., Sept. 10, 2009, No. 06-cv-0215- JL) 2009 WL 2957991 at p.3 [nonpub. opn.]; Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F. Supp.2d 1248, 1259-1260; Sammons v. Polk County School Bd.
(M.D. Fla., Oct. 28, 2005, No. 8:04CV2657T24EAJ) 2005 WL 2850076 at p. 3[nonpub.
opn.] ; but cf. M.S.-G. v. Lenape Regional High School Dist. (3d Cir. 2009) 306 Fed.Appx.
772, at p. 3[nonpub. opn.].
7 Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed.Reg. 46540-46541, 46699 (Aug. 14, 2006).
District has provided inadequate amount of occupational therapy (OT) services to meet Student’s fine motor and gross motor deficits.
The facts alleged in Student’s complaint are sufficient to put the District on notice of the issues forming the basis of the complaint. Student’s complaint identifies the issues and adequate related facts about the problem to permit the District to respond to the complaint and participate in a resolution session and mediation.
Therefore, Student’s complaint is sufficient.
ORDER
1. The complaint is sufficient under Title 20 United States Code section
1415(b)(7)(A)(ii).
2. All mediation, prehearing conference, and hearing dates in this matter are
confirmed.
IT IS ORDERED.
Dated: February 04, 2013 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings