Order Finding Complaint Sufficient and Denying Motion to Dismiss

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2018020102 v. ORDER FINDING COMPLAINT

SUFFICIENT AND DENYING

BERKELEY UNIFIED SCHOOL MOTION TO DISMISS

DISTRICT.

On February 1, 2018, Parents on Student’s behalf filed a Due Process Hearing Request1 (complaint) with the Office of Administrative Hearings naming Berkeley Unified School District. On February 7, 2018, District timely filed a Notice of Insufficiency and a Motion to Dismiss Student’s complaint. For the reasons discussed below, Student’s complaint is sufficient and District’s motion to dismiss is denied.

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).

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. (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.)

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).

The complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” (Sen. Rep. No. 108-185, supra, at p. 34.) 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. (Alexandra R. ex rel. Burke v. Brookline School Dist. (D.N.H., Sept. 10, 2009, CIV. 06-CV-0215-JL) 2009 WL 2957991[nonpub. opn.]; Escambia County Bd. 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, 8:04CV2657T24EAJ) 2005 WL 2850076 [nonpub. opn.]; but cf. M.S.-G v. Lenape Regional High School Dist. Bd. of Educ. (3d Cir. 2009) 306 Fed.Appx.

772, 775 [nonpub. opn.].) Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge. (Assistance to States for the Educ. of Children with Disabilities & Preschool Grants for Children with Disabilities (Aug. 14, 2006) 71 FR 46,540-46541, 46699.)

Although OAH will grant motions to dismiss allegations that are facially outside of OAH jurisdiction (e.g., civil rights claims, section 504 claims, enforcement of settlement agreements, incorrect parties, etc.), special education law does not provide for a summary judgment procedure. The purpose of the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et. seq.) is to “ensure that all children with disabilities have available to them a free appropriate public education,” and to protect the rights of those children and their parents. (20 U.S.C. § 1400(d)(1)(A), (B), and (C); see also Ed. Code, § 56000.) A party has the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a) [party has a right to present a complaint regarding matters involving a proposal or refusal to initiate or change the identification, assessment, or educational placement of a child; the provision of a FAPE to a child; the refusal of a parent or guardian to consent to an assessment of a child;

or a disagreement between a parent or guardian and the public education agency as to the availability of a program appropriate for a child, including the question of financial responsibility].) 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.)

The statute of limitations in California is two years, consistent with federal law. (Ed.

Code, § 56505, subd. (l); see also 20 U.S.C. § 1415(f)(3)(C).) However, title 20 United States Code section 1415(f)(3)(D) and Education Code section 56505, subdivision (l), establish exceptions to the statute of limitations in cases in which the parent was prevented from filing a request for due process due to specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint, or the local educational agency’s withholding of information from the parent that was required to be provided to the parent.

DISCUSSION

Student’s complaint consists of 36 pages of factual allegations and identifies eight issues, some with multiple sub-issues, asserting procedural and substantive violations of the IDEA. District’s notice of insufficiency addresses the complaint as a whole, and does not challenge any particular issue identified in the complaint. The facts alleged both in the general allegations and in connection with each sub-issue are sufficient to put District on notice of the issues forming the basis of the complaint. The complaint identifies the issues and adequate related facts about each problem to permit District to respond to the complaint and participate in a resolution session and mediation. Therefore, Student’s complaint is sufficient.

Student’s claims date back to the 2012-2013 school year. The complaint states facts asserting that District’s conduct fit within the tolling exceptions to the statute of limitations, for example, by failing to provide Parents with procedural safeguards following Parents’ request for an initial evaluation for special education eligibility. District argues in its motion that Student’s claims are barred by the statute of limitations because no facts are stated to support any of the applicable tolling provisions.

The issue of whether the statute of limitations bars some or all of Student’s claims requires findings of facts by the hearing officer. Both parties have the right to present evidence to support their positions on that issue. OAH does not grant motions for summary judgment, which District is effectively seeking. Therefore the motion to dismiss is denied.

District may raise the statute of limitations as an affirmative defense at hearing.

ORDER

1. The complaint is sufficient under title 20 United States Code section

1415(b)(7)(A)(ii).

2. District’s motion to dismiss the complaint is denied.

3. All prehearing conference and hearing dates in this matter are confirmed,

unless otherwise ordered.

DATE: February 8, 2018

ADRIENNE L. KRIKORIAN

Administrative Law Judge Office of Administrative Hearings