Order of Determination of Sufficiency of Due Process Complaint

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013020890

v. ORDER OF DETERMINATION OF

SUFFICIENCY OF DUE PROCESS

LONG BEACH UNIFIED SCHOOL COMPLAINT

DISTRICT.

On February 25, 2013, Parent on behalf of Student filed a due process hearing request 1 (complaint) naming the Long Beach Unified School District (District).

On March 7, 2013, District filed a timely 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 Individuals with Disabilities Education Act (20 U.S.C. § 1400, et seq.) (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 alleges that at the time of her individualized education program (IEP) team meetings in August, September and December 2012, Student was a 3-year old girl with autism, but despite reports of her severe communication deficits, inattention, noncompliance and self-stimulatory behaviors, the District failed to offer Student a FAPE in the LRE by offering to place Student in a preschool special day class and: (1) failing to offer her sufficient behavior intervention and supervision, (2) failing to offer sufficient speech and language services, (3) failing to provide those speech and language services consented to by Parent, (4) failing to offer services over the extended school year, (5) failing to offer Student a program that was scientifically based upon peer reviewed research, (6) failing to provide those behavior services consented to by Parent, and (7) failing to make a specific written offer of placement.

As a resolution, Student seeks a year-round 40-hour per week program of individual behavior therapy and supervision provided by a non-public agency (NPA), three hours per 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).

week of NPA speech and language services, and reimbursement for both behavior and speech services privately funded by Parent.

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 District to respond to the complaint and participate in resolution session and mediation.

Therefore, Student’s statement of her seven claims is sufficient.

Student’s proposed resolutions request year-round behavior intervention services and supervision and speech and language services, and reimbursement. A complaint is required to include proposed resolutions to the problem, to the extent known and available to the party at the time. (20 U.S.C. §1415(b)(7)(A)(ii)(IV).) The proposed resolution stated in Student’s complaint is well-defined, and Student has met the statutorily required standard of stating a resolution to the extent known and available to her at the time.

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: March 12, 2013 /s/

ALEXA J. HOHENSEE

Administrative Law Judge Office of Administrative Hearings