California OAH special education order · May 24, 2017
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2017050244 · ALJ Linda Johnson
OAH deemed Student's complaint sufficient because the Schools' notice of insufficiency was faxed after 5:00 p.m. on day 15, so it counted as filed on day 16, past the deadline.
Summary
Four of the five agencies named in Student's due process complaint filed a notice of insufficiency challenging the complaint. Student's proof of service showed the agencies were served on May 3, 2017. The Schools filed their notice on May 18, 2017, at 5:21 p.m. Because documents filed after business hours count as filed on the next business day, the notice was deemed filed May 19, more than 15 days after service, so OAH deemed the complaint sufficient without reviewing its contents and confirmed all dates.
Why it matters
The 15-day deadline to challenge a complaint's sufficiency is strict, and a filing made after 5:00 p.m. counts as filed the next business day. A late challenge means the complaint goes forward as sufficient, whatever it says. Parents should file a proof of service with the complaint, because it fixes the date the deadline starts running.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(C)
- Ed. Code, § 56502, subd. (d)(1)
- Cal. Code Regs., tit. 1, § 1006, subd. (h)
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. 2017050244 v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
KERN COUNTY OFFICE OF COMPLAINT
EDUCATION, KERN COUNTY
SUPERINTENDENT OF SCHOOLS,
KERN HIGH SCHOOL DISTRICT,
NORRIS SCHOOL DISTRICT, AND
PANAMA BUENA VISTA UNION
SCHOOL DISTRICT.
On May 03, 2017, Student filed a Due Process Hearing Request (complaint) with the Office of Administrative Hearings naming Kern County Office of Education, Kern County Superintendent of Schools, Kern High School District, Norris School District, and Panama Buena Vista Union School District. Kern County Office of Education, Kern County Superintendent of Schools, Norris School District, and Panama Buena Vista Union School District (Schools) filed a notice of insufficiency as to Student’s complaint on May 18, 2017, at 5:21 p.m.
APPLICABLE LAW
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 section 1415(b)(7)(A).
The complaint is deemed sufficient unless a party notifies the Office of Administrative Hearings and the other party in writing within 15 days of receiving the complaint that the party believes the complaint has not met the notice requirements.
(20 U.S.C. § 1415(c)(2)(C); Ed. Code, § 56502, subd. (d)(1).)
A request for a due process hearing under Education Code section 56502 is the due process complaint notice required under title 20 U.S.C. section 1415(b)(7)(A).
Documents faxed to OAH after business hours, 8:00 a.m. through 5:00 p.m., are deemed filed on the next regular business day. (1 C.C.R. § 1006, subd. (h).).
DISCUSSION
Student’s complaint was filed on May 3, 2017. Schools did not state in their NOI when they received Student’s complaint, however, Student filed a proof of service with its complaint indicating they served Schools on May 3, 2017. Schools’ NOI was dated, filed with OAH, and served on May 18, 2107, at 5:21 p.m. Schools’ NOI is deemed filed on May 19, 2017, which is more than 15 days after they received Student’s complaint. Schools’ NOI was not filed within the statutorily required timeline. Therefore, Student’s complaint is deemed sufficient.
ORDER
1. The complaint is deemed sufficient under title 20 United States Code section
1415(c)(2)(C) and Education Code section 56502, subdivision (d)(1).
2. All mediation, prehearing conference, and hearing dates in this matter are
confirmed.
DATE: May 24, 2017
LINDA JOHNSON
Administrative Law Judge Office of Administrative Hearings