California OAH special education order · February 14, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013010875 · ALJ Alexa J. Hohensee
OAH found Student's complaint sufficient because it described the problems with the December 2012 IEP and gave enough supporting facts for District to respond and take part in resolution and mediation.
Summary
District filed a notice of insufficiency challenging Student's complaint, which alleged procedural and substantive denials of FAPE in the December 17, 2012 IEP. The complaint said District did not consult or invite staff from the nonpublic school where Parents had unilaterally placed Student, relied on testing by a contracted psychologist who did not use recognized Asperger's assessment tools, and offered essentially the same supports under which Student had failed. The ALJ held that the three claims (procedural violations, inaccurate eligibility, and denial of FAPE) gave District enough notice of the issues. All scheduled dates were confirmed.
Why it matters
OAH reads complaints liberally. A complaint that ties specific facts about who was left out of an IEP meeting, how assessments were done, and what was offered to clearly stated claims will survive a sufficiency challenge.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- Sen. Rep. No. 108-185 (2003)
- 71 Fed.Reg. 46540-46541, 46699
- Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F.Supp.2d 1248
- Alexandra R. v. Brookline School Dist. (D.N.H. 2009) 2009 WL 2957991
- Ed. Code § 56502
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:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013010875
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
TORRANCE UNIFIED SCHOOL COMPLAINT
DISTRICT.
On January 28, 2013, Parent on behalf of Student filed a due process hearing request] 1 (complaint) naming the Torrance Unified School District (District).
On February 12, 2013, District timely filed a notice of insufficiency (NOI) as to Student’s complaint.
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 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 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).
3 20 U.S.C. § 1415(b)(7)(A)(ii)(III) & (IV).
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
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 alleges that District procedurally and substantively denied him a free appropriate public education (FAPE) in developing the individualized education program (IEP) of December 17, 2012. Student alleges that although Student had been unilaterally placed by his parents in an NPS in July 2012, and his parents had consented to academic testing by a special education teacher, District did not consult with the NPS or invite NPS staff to the IEP team meeting, and instead relied on a psychologist contracted by the District to test Student’s abilities and achievement for purposes of determining Student’s present levels of performance (PLOP’s). In addition, Student had been diagnosed with Asperger’s Syndrome for several years, but the psychologist failed to use recognized assessment tools for Asperger’s Syndrome, and the accommodations and services offered Student were essentially the same that had allowed Student to fail in his classes until unilaterally placed. Student claims that (1) District violated his procedural rights by failing to gather accurate information on his PLOP’s, relying on achievement testing to which 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).
Student’s parents had not consented, failing to invite the required individuals to the IEP team meeting, failing to discuss the continuum of placement options, and offering Student an educational program that did not meet his unique needs and was predetermined, that (2)
District failed to accurately identify Student’s eligibility for special education, and that (3)
District failed to offer Student a FAPE.
Student’s complaint identifies the issues and adequate related facts about the problem to permit District to respond to the complaint and participate in a resolution session and mediation. Therefore, Student’s statement of his three claims 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.
Dated: February 14, 2013 /s/
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings