Order of Determination of Sufficiency of Due Process Complaint

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENTS ON BEHALF OF STUDENT, OAH CASE NO. 2013100440

v. ORDER OF DETERMINATION OF

SUFFICIENCY OF DUE PROCESS

SAN FRANCISCO UNIFIED SCHOOL COMPLAINT

DISTRICT.

On October 10, 2013, Student’s parents on behalf of Student (Student) filed a due process hearing request 1 (complaint) with the Office of Administrative Hearings (OAH)

naming the San Francisco Unified School District (District). On October 25, 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 three issues for hearing regarding the District’s purported failure to assess Student in all areas of suspected disability and purported failure to make a timely offer of an appropriate residential treatment program, which caused Parents to make a unilateral private placement. The District asserts that Issue A(2) is not adequately pled. However, the District’s contention regarding Issue A(2) is a factual dispute that is not appropriate for an NOI as to whether Parents refused to consent to the District referring Student to Family Life Center (FLC), a residential treatment program, so that FLC could review Student’s records to determine if he would be an appropriate placement or if the District made an offer of placement of FLC at the May 28, 2013 individualized education program (IEP) team meeting. Therefore, a triable issue for hearing exists whether Parents refused to permit the District to share information to FLC, and therefore are not entitled for reimbursement for their unilateral private placement after May 28, 2013, or if the District made an offer of FLC at the May 28, 2013 IEP team that would not provide Student with a

FAPE.

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).

As to the other two issues, Student alleges sufficient facts in his complaint regarding his mental health and social emotional needs, District’s failure to assess and his need for a residential placement to put the District on notice as to the issues for hearing.

Student’s proposed resolution is that the District reimburse Parents for costs related to the unilateral private residential placement and for a prospective placement. 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.

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: October 29, 2013 /s/

PETER PAUL CASTILLO

Administrative Law Judge Office of Administrative Hearings