California OAH special education order · October 24, 2014
Order of Determination of Insufficiency of Due Process Complaint
OAH Case No. 2014100412 · ALJ Susan Ruff
OAH found Student's complaint insufficient because it challenged an IEP meeting that had not yet happened, so no actual dispute existed; Student may amend within 14 days.
Summary
San Francisco filed a notice of insufficiency challenging Parent's complaint, which objected that certain evaluators would not attend an upcoming IEP team meeting. OAH found the complaint unclear because the meeting had not yet occurred when the complaint was filed, so it was uncertain whether Parent objected to the meeting notice or to something that might or might not happen later. Because there was no actual dispute to hear at filing, the complaint was found insufficient. Student was given 14 days to file an amended complaint, which could describe what happened at the meeting, and all dates were vacated.
Why it matters
A due process complaint should challenge something that has already happened, not an expected problem at a future IEP meeting. Parents without lawyers can ask OAH for a mediator's help in drafting or amending a complaint.
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
- Ed. Code, § 56505
- 71 Fed.Reg. 46540-46541, 46699 (Aug. 14, 2006)
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. 2014100412 v. ORDER OF DETERMINATION OF
INSUFFICIENCY OF DUE PROCESS
SAN FRANCISCO UNIFIED SCHOOL COMPLAINT
DISTRICT.
On October 7, 2014, Student’s parent on behalf of Student filed a due process hearing request 1 (complaint) naming the San Francisco Unified School District. That complaint was not received by San Francisco until October 13, 2014.
On October 23, 2014, San Francisco 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 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 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).
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. 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 that San Francisco noticed an individualized education program team meeting, which was scheduled to occur 10 days after the date of the filing of the due process complaint. According to the complaint, Student’s parent had been informed that certain evaluators would not attend that IEP team meeting. Student’s parent objected to their absence from the meeting.
Student’s complaint is unclear. Because the meeting had not yet occurred at the time the complaint was filed, it is uncertain whether Student’s complaint objected to the notice of the meeting or objected to something that might or might not happen in the future.
Accordingly, Student fails to plead a sufficient issue for hearing because there was no actual dispute for hearing when the case was filed.
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).
It is appropriate to give Student leave to amend the complaint. If the meeting has now occurred, Student can revise the complaint to add information about what happened at the meeting. In addition, Student’s parent may want to take advantage of mediator assistance for drafting complaints. That assistance is described in the following paragraph.
MEDIATOR ASSISTANCE FOR NON-REPRESENTED PARENTS: A parent who is not represented by an attorney may request that the Office of Administrative Hearings 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 title 20 United States Code
section 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. The amended complaint must also be served on the San Francisco Unified School District on the same day it is filed with OAH.
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.
DATE: October 24, 2014
/S/
SUSAN RUFF
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.