California OAH special education order · March 1, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013020243 · ALJ Margaret Broussard
OAH found Student's one-line complaint that he was denied individual tutoring insufficient because it did not explain his special education status, IEP, or facts supporting the claim; Student may amend within 14 days.
Summary
District filed a motion to dismiss Student's complaint for deficient pleading, which OAH treated as a notice of insufficiency. Student's complaint alleged only that Student was denied individual tutoring and asked for tutoring services. OAH found the complaint insufficient because it did not say whether Student was eligible for special education, whether he had an IEP, what services the IEP offered, or whether tutoring should have been part of the IEP. Student was given 14 days to file an amended complaint or face dismissal, and all dates were vacated.
Why it matters
Even under liberal pleading standards, a complaint must connect the requested service to the student's IDEA status and IEP with supporting facts; a bare statement like 'denied tutoring' will not go forward. Parents without attorneys can ask OAH for a mediator to help identify issues and remedies before amending.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(D)
- 20 U.S.C. § 1415(c)(2)(E)(i)(II)
- Ed. Code, § 56505
- Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F.Supp.2d 1248
- 71 Fed.Reg. 46540-46541, 46699 (Aug. 14, 2006)
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. 2013020243
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
SAN DIEGO UNIFIED SCHOOL COMPLAINT
DISTRICT.
On February 7, 2013, Student filed a Due Process Hearing Request 1 (complaint)
naming the San Diego Unified School District (District).
On February 21, 2013, the District filed a Motion to Dismiss Complaint Due To Deficiency In The Pleading. Although initially titled as a motion to dismiss, the motion contends that the complaint was insufficient and will be treated as 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 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).
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 Individuals with Disabilities Education Act (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’s complaint raises one claim, which is insufficiently pled as discussed below.
Student’s claim as stated in the complaint is “My son [Student] was denied individual tutoring.” Student’s proposed remedy as stated in the complaint is “Provide [Student] with the tutoring services he desperately needs to benefit from attending school and prevent him from being a high school dropout.”
In this case, Student has not supplied sufficient information regarding the status of Student in relation to the IDEA. Has the student been found eligible for special education? If the child has not been found eligible, and Student believes that he should be, what are the facts supporting Student’s eligibility? Does Student have an individualized education program (IEP)? If so, what services does the IEP offer Student and how are these services allegedly appropriate or inappropriate for Student? Is Student’s request for tutoring something Student alleges should have been a part of Student’s IEP? Student’s complaint is 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).
insufficiently pled in that it fails to provide District with the required notice of a description of the problem and the facts relating to the problem.
A parent who is not represented by an attorney may request that the Office of Administrative Hearings (OAH) provide a mediator to assist the parent in identifying the issues and proposed resolutions that must be included in a complaint 8 Parents are encouraged to contact OAH for assistance if they intend to amend their due process hearing request.
ORDER
1. Student’s complaint is insufficiently pled under section title 20 United States
Code 1415(c)(2)(D).
2. Student shall be permitted to file an amended complaint under title 20 United
States Code section 1415(c)(2)(E)(i)(II). 9
3. The amended complaint shall comply with the requirements of title 20 United
States Code section 1415(b)(7)(A)(ii), and shall be filed not later than 14 days from the date of this order.
4. If Student fails to file a timely amended complaint, the complaint will be
dismissed.
5. All dates previously set in this matter are vacated.
IT IS SO ORDERED
Dated: March 1, 2013 /s/
MARGARET BROUSSARD
Administrative Law Judge Office of Administrative Hearings 8 Ed. Code, § 56505.
9 The filing of an amended complaint will restart the applicable timelines for a due process hearing.