California OAH special education order · April 22, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013040212 · ALJ Stella Owens-Murrell
OAH found Student's complaint insufficient on all four issues because they alleged ADA and Unruh Act violations about Parents attending assessments, not a denial of FAPE, and gave Student 14 days to amend.
Summary
District challenged the sufficiency of Student's complaint. Student's four issues claimed District failed to let Parents be present during Student's assessment as a disability accommodation. OAH found these were really ADA and Unruh Act claims, which OAH cannot hear, and that the complaint alleged no facts showing a denial of FAPE. OAH also noted that the complaint misstated a prior OAH order that had barred Parents from being present during the assessments, and found the proposed resolutions undefined. Student was given 14 days to file an amended complaint or face dismissal.
Why it matters
A due process complaint must tie its claims to the IDEA, such as identification, evaluation, placement, or FAPE, because OAH cannot decide ADA or Unruh Act claims. Parents also cannot use a new complaint to relitigate a prior OAH order that set the terms of an assessment.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(D)
- Ed. Code, § 56502
- Ed. Code, § 56505
- Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F.Supp.2d 1248
People named in the order
- Carla Garrett, Administrative Law Judge in prior OAH Case No. 2013010162
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. 2013040212
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
TORRANCE UNIFIED SCHOOL COMPLAINT
DISTRICT.
On April 04, 2013 Student filed a Due Process Hearing Request 1 (complaint)
naming Torrance Unified School District (District).
On April 19, 2013, District 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).
The complaint is deemed sufficient unless a party notifies the Office of Administrative Hearings and the other party in writing within 15 days of receiving the complaint that the party believes the complaint has not met the notice requirements. 3 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).
3 20 U.S.C. § 1415(c)(2)(C); Ed. Code, § 56502, subd. (d)(1).
resolution of the problem to the extent known and available to the party at the time. 4 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. 5 The complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” 6 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. 7 Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge. 8
DISCUSSION
Student’s complaint asserts four problems or issues that are insufficiently pled.
As set forth below each issue fails to provide District with the required notice of 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.
Issues one through four actually allege violations of the ADA and the Unruh Act over which OAH has no jurisdiction. Essentially Issues one through four assert District’s failure to allow Parents to be present during Student’s assessment as an accommodation to Student.
Nowhere does Student allege facts that Student has been denied a FAPE. In addition the complaint misstates the decision in OAH Case No. 2013010162, dated March 11, 2013, a District-filed case, in which ALJ Carla Garrett ordered Parents to present Student for 4 20 U.S.C. § 1415(b)(7)(A)(ii)(III) & (IV).
5 See, H.R.Rep. No. 108-77, 1st Sess. (2003), p. 115; Sen. Rep. No. 108-185, 1st Sess. (2003), pp. 34-35.
6 Sen. Rep. No. 108-185, supra, at p. 34.
7 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.].
8 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’s assessments and expressly prohibited Parents’ presence during the conduct of the assessments.
The proposed resolutions are equally as insufficient as the remedies because they similarly rest on following the ADA and Unruh Act as well as Student’s physician’s orders.
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 resolutions stated in Student’s complaint are not well-defined. Here, Student was ordered by the ALJ and not her physician to be presented by Parents for District assessments without Parent involvement in the assessments. Accordingly Student has not met the statutorily required standard of stating a resolution to the extent known and available to her at the time.
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. 9 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 as to all four issues under 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). 10
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.
9 Ed. Code, § 56505.
10 The filing of an amended complaint will restart the applicable timelines for a due process hearing.
5. All dates previously set in this matter are vacated.
Dated: April 22, 2013 /s/
STELLA OWENS-MURRELL
Administrative Law Judge Office of Administrative Hearings