California OAH special education order · August 14, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013080348 · ALJ Peter Paul Castillo
OAH found Student's complaint insufficient because it did not explain how District failed to provide adequate reading services or when typing software was recommended for occupational therapy.
Summary
Student's complaint raised two issues: that District failed to provide adequate reading services and adequate occupational therapy (OT) services. District filed a notice of insufficiency the next day. OAH found the complaint did not say how District failed on reading, for example whether reading was missing from Student's IEP or the IEP was not implemented. It also did not say when typing software was recommended for OT. The proposed resolutions (reimbursement for private reading and OT services and an appropriate reading program) were adequate, and Student was given 14 days to file an amended complaint.
Why it matters
Parents should state specific facts showing how the district failed, such as no IEP offer or failure to implement, and when key recommendations were made. Clear requests for relief alone will not save a complaint that lacks supporting facts.
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 § 56502
- Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F.Supp.2d 1248
- 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. 2013080348
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
SALINAS UNION HIGH SCHOOL COMPLAINT
DISTRICT.
On August 12, 2013 Parent on behalf of Student (Student) filed a Due Process Hearing Request 1 (complaint) with the Office of Administrative Hearings (OAH) naming the Salinas Union High School District (District). On August 13, 2013, the 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).
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 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 contains two issues, which allege that the District failed to provide Student with adequate reading and occupational therapy (OT) services. As to the reading services, Student does not allege how the District failed to provide him adequate reading services, such as no offer in Student’s individualized educational program or the District failing to implement his reading program. Regarding OT, the complaint does not allege when a recommendation was made that Student required typing software.
Accordingly, Student fails to allege sufficient facts to support the claims in his complaint to put the District on notice, and therefore the complaint is insufficiently pled.
Student’s proposed resolutions are that the District reimburse Parent for privately obtained reading and OT services and the District implement an appropriate reading program. 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 well-defined requests that meet the statutorily required standard of stating a resolution to the extent known and available to Student at the time.
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).
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). 8
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: August 14, 2013 /s/
PETER PAUL CASTILLO
Administrative Law Judge Office of Administrative Hearings 8 The filing of an amended complaint will restart the applicable timelines for a due process hearing.