California OAH special education order · April 19, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013040587 · ALJ Alexa J. Hohensee
OAH found Student's complaint insufficient because it only said "see pg #10 on IEP" and attached one undated IEP page, with no description of the problem, facts, or proposed resolution.
Summary
District filed a notice of insufficiency challenging Student's due process complaint. The complaint said only "[s]ee pg #10 on IEP" and attached one page of an undated IEP on which Parent had checked boxes disagreeing with parts of the IEP and requesting IEEs, services, and nonpublic school funding. OAH found the complaint insufficient because it did not describe the problem, give facts such as when the IEP occurred or how District responded, or propose a resolution. Student was given 14 days to file an amended complaint, or the case will be dismissed, and all dates were vacated.
Why it matters
Attaching an IEP page without explaining the dispute is not enough. A complaint must describe the problem, the facts, and the remedy wanted, and self-represented parents can ask OAH for a mediator to help draft these.
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
- Ed. Code, § 56502
- 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. 2013040587
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
LOS ANGELES UNIFIED SCHOOL COMPLAINT
DISTRICT.
On April 11, 2013, Parent on behalf of Student filed a due process hearing request 1 (complaint) naming the Los Angeles Unified School District (District).
On April 18, 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 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 is 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.
Student’s complaint is devoid of allegations. It states only “[s]ee pg #10 on IEP,” and attaches one page of a document which appears to be an individualized education program (IEP) with a partial date of January 29 (no year provided). The undated document also appears to be signed by Parent on April 10, 2013, and includes checked boxes indicating that Parent disagreed with parts of the IEP and requested independent educational evaluations (IEEs), services and NPS funding.
The complaint does not identify what portions of the information on the attached page, if any, is the basis of Student’s claim. The complaint does not allege when the undated IEP that is the basis of Student’s claim occurred, or when or how the District responded to Parent’s requests, if District responded at all. No proposed resolutions are identified.
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 complaint fails to provide a description of the nature of the problem relating to the proposed initiation or change concerning the identification, evaluation, or educational placement of Student, or the provision of a FAPE to Student; facts relating to the problem; or a proposed resolution of the problem to the extent known and available to the Student. As a result, Student’s complaint is vague and confusing, and therefore insufficiently pled.
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 Title 20 United States Code
section 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.
Dated: April 19, 2013 /s/
ALEXA J. HOHENSEE
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.