California OAH special education order · April 19, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013040718 · ALJ June R. Lehrman
OAH found Student's complaint insufficient because it mixed well-pled child find and assessment claims with other facts that could be background, extra claims, or proposed resolutions, leaving District without clear notice.
Summary
District filed a notice of insufficiency challenging Parent's due process complaint. OAH found that the claims about child find, failure to assess, and failure to give procedural safeguards and prior written notice were adequately pled. However, the complaint also described other matters, such as no behavior support plan, out-of-pocket behavioral and group home costs, and the need for one-to-one aide support and residential treatment, without clearly saying whether they were separate claims, background, or requested remedies. OAH gave Student 14 days to file an amended complaint, vacated all dates, and encouraged Parents to ask OAH for a mediator to help.
Why it matters
Parents should state each claim as a separate, numbered issue and list remedies separately, so facts are not left unclear as background, claims, or remedies. Parents without a lawyer can ask OAH for a mediator to help frame their issues and proposed resolutions.
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
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. 2013040718
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
PLEASANT RIDGE UNION SCHOOL COMPLAINT
DISTRICT.
On April 12, 2013, Parent filed a Due Process Hearing Request 1 (complaint) naming Pleasant Ridge Union School District (District) as the respondent.
On April 19, 2013, District filed a Notice of Insufficiency (NOI) as to the complaint.
As explained below, the complaint is insufficient.
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 alleges factual background pertaining to Student’s medical diagnoses and history of aggressive behaviors and hospitalizations. On two occasions, it alleges, Parents requested District to assess Student, but District failed to assess, taking other measures to observe and/or accommodate Student short of assessing her. The complaint alleges that District failed in its Child Find duties, failed to assess Student, and failed to notify Parents of their procedural rights, or to provide prior written notice of the refusal to assess. The above allegations are sufficiently pled, however the complaint goes further to allege other facts which are not clearly stated as separate claims. Thus, the complaint alleges that Student was never given a behavior support plan; never given appropriate supports, services or placements; that Parents paid out of pocket for behavioral supports, a behaviorist at home, and a psychologist for Student; that Student was hospitalized; that Parents paid out of pocket for her to be placed in a group home but that Student was then removed from the group home; that Student is now in a hospital diversion program; that Student requires one- to-one assistance; and that Student requires residential treatment.
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).
The additional facts can be construed simply as background, or as additional claims, or they might be construed to relate solely to proposed resolutions. The complaint is thus insufficiently pled in that it fails to provide District with the required notice of a description of the problem, or to put District on notice as to the basis of Student’s claims.
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.
Dated: April 19, 2013 /s/
JUNE R. LEHRMAN
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.