California OAH special education order · June 30, 2014
Order Following Prehearing Conference
OAH Case No. 2014060645, 2014061009 · ALJ Marian H. Tully
OAH found Student's complaint sufficient on IDEA claims because it gave Academy adequate notice of the placement dispute, but dismissed constitutional, ADA, and other federal claims as outside OAH's jurisdiction.
Summary
At the prehearing conference, Academy challenged the sufficiency of Student's complaint. Student's complaint alleged that Academy denied a free appropriate public education by failing to provide an appropriate functional skills placement for two years. The ALJ found the complaint sufficient under the IDEA's liberal pleading standard because it named specific assessments and assessors and proposed remedies. The ALJ dismissed the constitutional, ADA, Rehabilitation Act, and other federal law claims as beyond OAH's jurisdiction. Student's unopposed motion to consolidate with Academy's case was also granted, and the hearing was continued by joint request to October 2014.
Why it matters
A complaint that describes the problem, gives supporting facts, and proposes remedies will usually survive a sufficiency challenge. Claims under civil rights laws other than the IDEA belong in another forum, not at OAH.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026
- Ed. Code § 56505, subd. (e)(7)
- 29 U.S.C. § 701 et seq.
- 42 U.S.C. § 1983
People named in the order
- Marian H. Tully, Administrative Law Judge
- Jack B. Clarke Jr., Attorney for Academy
- Hans A. Gillinger, Attorney for Student
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:
ACADEMY FOR ACADEMIC OAH CASE NO. 2014060645
EXCELLENCE,
v.
PARENTS ON BEHALF OF STUDENT
In the Matter of:
OAH CASE NO. 2014061009
PARENTS ON BEHALF OF STUDENT, [Primary case] v.
ORDER FOLLOWING PREHEARING
ACADEMY FOR ACADEMIC CONFERENCE
EXCELLENCE.
On June 30, 2014, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Marian H. Tully, Office of Administrative Hearings (OAH). Jack B. Clarke Jr., Attorney at Law, appeared on behalf of Academy for Academic Excellence (Academy). Hans A. Gillinger, Attorney at Law, appeared on behalf of Student.
The PHC was recorded.
Based on discussion of the parties, the ALJ issues the following order:
1. Motion to Consolidate. On June 19, 2014, Student filed a Request for Due
Process Hearing, OAH case number 2014061009 (Student’s case). On June 25, 2014, Student moved to consolidate Student’s case with the complaint filed by Academy in case number 2014060645 (Academy’s case). On June 27, 2014, Academy filed a Notice of Non-Opposition, but did not agree to the dates currently set for the due process hearing in Student’s case.
Student’s motion to consolidate is granted for good cause. Both cases involve the same factual issue, and will require the same witnesses and exhibits. The primary case number in the consolidated matter is case number 2014061009.
2. Hearing Dates, Times, and Location. The parties jointly request a
continuance of the hearing on the consolidated matter to agreed dates, less than 90 days from the initial hearing dates set in both cases. Accordingly, the June 30, 2014, PHC is continued to September 29, 2014, at 3:00 p.m. The hearing on the consolidated cases shall take place on October 1, 2, 7, 8, 9, 2014, and continue day to day as necessary at the discretion of the ALJ. The hearing shall begin at 9:30 a.m. on October 1, 2014, and at 9:00 a.m. on all other days unless otherwise ordered. The hearing shall take place at Academy’s offices located at 17500 Mana Road, Apple Valley, California, 92307.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
3. PHC Statements, Witness and Exhibit Lists. PHC statements, witness and
exhibit lists have been filed by both parties. The parties shall serve their exhibits on each other in compliance with Education Code section 56505, subdivision (e)(7). Additional prehearing conference statements need only be filed if the parties have changed their positions on the issues or evidence.
4. Motions. Academy timely filed a Notice of Insufficiency (NOI) in Student’s
case on June 27, 2014. Student filed a Response to Notice of Insufficiency on June 30, 2014.
The named parties to a due process hearing request have the right to challenge the sufficiency of the complaint. (20 U.S.C. § 1415(b) & (c).) The party filing the complaint is not entitled to a hearing unless the complaint meets the requirements of Title 20 United States Code section1415(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. (20 U.S.C. § 1415(b)(7)(A)(ii)(III) & (IV).) These requirements prevent vague and confusing complaints, and promote fairness by providing the named parties with sufficient information to know how to prepare for the hearing and how to participate in resolution sessions and mediation. (See, H.R.Rep. No. 108-77, 1st Sess. (2003), p. 115; Sen. Rep. No. 108-185, 1st Sess. (2003), pp. 34-35.) 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 complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” The pleading requirements should be liberally construed in light of the broad remedial purposes of the Individuals Disabilities Education Act and the relative informality of the due process hearings it authorizes. Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge.
Student’s complaint identifies Student by date of birth, address, parents, grade, schools of residence and attendance, and alleges Academy failed to provide Student a free appropriate public education by failing to provide an appropriate placement using a functional skills based program to meet Student’s unique needs for the two year period prior to March 12, 2014. The allegations specifically refer to particular assessments and assessors by name. Student’s proposed resolution includes compensatory education and other relief.
The facts alleged in Student’s complaint are sufficient to put Academy on notice of the issues forming the basis of the complaint, permit Academy to respond to the complaint and participate in a resolution session, mediation, and to prepare for hearing. The IDEA requires only a “description of the nature of the problem,” facts related to the problem and proposed resolutions to the extent know and available at the time (20 U.S.C. (b)(7)(A)(ii)), a requirement liberally construed in light of the remedial and informal nature of the due process proceedings. Therefore, Student’s complaint is sufficient as to claims arising under the Individuals with Disabilities Education Act (IDEA). The jurisdiction of OAH is limited to these matters. (Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.)
OAH does not have jurisdiction to entertain claims based on Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) or Section 1983 of Title 42 United States Code. To the extent Student’s complaint alleges “violation of the Constitution, the Americans with Disability Act of 1990, title V of the Rehabilitation Act of 1973 [29 U.S.C.
§§ 790 et seq.] and all other Federal laws…” those claims are dismissed.
5. All other PHC matters shall be discussed at the continued PHC to be held on
September 29, 2014, at 3:00 p.m.
6. Settlement. Mediation is set on July 24, 2014. The parties are encouraged to
continue working together to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED
AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A
VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE
PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR
PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE
PARTIES SHOULD SIMULTANEOUSLY FAX THE SIGNATURE PAGE OF THE
SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH AT
THE FAXINATION LINE at 916-376-6319.
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.
7. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: June 30, 2014
/S/
MARIAN H. TULLY
Administrative Law Judge Office of Administrative Hearings