California OAH special education order · December 16, 2013
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2013120112 · ALJ Judith Pasewark
OAH found Student's assessment and educational-records claims sufficient but ruled the claim that District failed to tailor an appropriate program insufficient because it did not identify which program or IEP was challenged.
Summary
District filed a notice of insufficiency challenging Student's three-issue due process complaint. OAH found Issue One (failure to assess in all areas of need since November 26, 2011) and Issue Three (failure to provide Parent with educational records since October 2013) sufficiently pled. Issue Two was insufficient because Student claimed District failed to tailor an appropriate program without identifying the program or IEP at issue. Student may amend within 14 days; otherwise the hearing proceeds only on Issues One and Three.
Why it matters
A claim that a district's program was inappropriate should name the specific IEP or offer being challenged, or it may be cut from the hearing. Filing an amended complaint restarts the due process timelines.
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.
PBEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013120112
v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
SAN FRANCISCO UNIFIED SCHOOL COMPLAINT
DISTRICT.
On November 26, 2013, Parent on Behalf of Student (Student) filed a Due Process Hearing Request 1 (complaint) naming San Francisco Unified School District (District).
On December 11, 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 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 three claims in the complaint, some of which are sufficient and some which are insufficient. The issues are discussed below.
Issue One is sufficiently pled to put the District on notice as to the basis of Student’s claim, specifically, since November 26, 2011, the District has failed to assess Student in all areas of need, which has resulted in a denial of FAPE:
Issue Three is sufficiently pled to put the District on notice as to the basis of Student’s claim, specifically, since October 2013, the District has committed a procedural violation by failing to provide Parent with Student’s educational records, which has denied Student a
FAPE.
With regard to Issue Two, Student fails to allege sufficient facts to support a claim.
Specifically, while Student alleges that the District failed to tailor an appropriate educational program for Student, Student fails to identify what program or IEP he bases this contention.
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).
Therefore, Student has failed to state sufficient facts supporting this claim, and the claim is insufficient.
ORDER
1. Issues One and Three of Student’s complaint are sufficient under Title 20
United States Code section 1415(b)(7)(A)(ii).
2. Issue Two of Student’s complaint is insufficiently pled under Title 20 United
States Code section 1415(c)(2)(D).
3. Student shall be permitted to file an amended complaint under Title 20 United
States Code section 1415(c)(2)(E)(i)(II). 8
4. 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.
5. If Student fails to file a timely amended complaint, the hearing shall proceed
only on Issues One and Three in Student’s complaint.
Dated: December 16, 2013 /s/
JUDITH PASEWARK
Administrative Law Judge Office of Administrative Hearings 8 The filing of an amended complaint will restart the applicable timelines for a due process hearing.