California OAH special education order · February 14, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013010958 · ALJ Alexa J. Hohensee
OAH found Student's complaint sufficient, holding that allegations about missing training on an AAC device and inadequate speech therapy gave District enough notice despite being somewhat disjointed.
Summary
District filed a notice of insufficiency challenging Student's due process complaint. The complaint alleged that Student got an augmentative and alternative communication (AAC) device in 2011, but he and his family were never trained to use it. It also alleged that District's offer of 30 minutes of speech therapy twice a month was not enough because Student needs weekly therapy, and that he is owed two years of services. OAH held that the complaint, though somewhat disjointed, identified the issues and enough facts for District to respond and take part in a resolution session and mediation, and it confirmed all scheduled dates.
Why it matters
OAH reads complaints liberally. A parent's complaint that clearly describes the problem, the key facts, and the services wanted can survive a sufficiency challenge even if it is not polished.
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
- Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F.Supp.2d 1248
- 71 Fed.Reg. 46540-46541, 46699
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. 2013010958
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
TORRANCE UNIFIED SCHOOL COMPLAINT
DISTRICT.
On January 30, 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 he received an augmentative and alternative communication (AAC) device from the District in 2011, but he and his family have not yet received training on how to use the device. On September 20, 2012, the District presented Student’s parents (Parents) with an assessment completed as part of extending Student’s home/hospital instruction, and offered Student 30 minutes of speech therapy twice a month in use of the device, but Student alleges that he needs weekly speech therapy. The complaint alleges that Student is owed two years of speech therapy services, and that his home/hospital tutors continue to present him work on an AAC device that Student does not know how to use.
Student’s complaint, although somewhat disjointed, 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.
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).
Therefore, Student’s statement of his claim 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