California OAH special education order · May 3, 2018
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2018040786 · ALJ Deborah Myers-Cregar
OAH found Student's complaint sufficient, ruling that its ten issues about placement, services, ABA, IEP meetings, transportation, and supports gave San Francisco enough notice to respond.
Summary
San Francisco filed a Notice of Insufficiency challenging Student's due process complaint. The complaint alleged ten ways the district denied Student a free appropriate public education beginning September 2016. These included the special day class placement, insufficient direct services, no ABA provider, problems with IEP meetings, toilet training, transportation with a one-to-one nurse, pull-out services, and a quiet room. OAH found the issues and facts gave the district enough notice to respond and take part in resolution and mediation, found the proposed resolutions well-defined, and confirmed all dates.
Why it matters
OAH reads complaints liberally, so a parent's complaint that lists specific problems, related facts, and a requested remedy such as ABA services will usually survive a district's sufficiency challenge.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(b) & (c)
- Sen. Rep. No. 108-185
- Escambia County Bd. of Educ. v. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248
- 71 FR 46540-46541, 46699
- Ed. Code § 56502
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. 2018040786 v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
SAN FRANCISCO UNIFIED SCHOOL COMPLAINT
DISTRICT.
On April 18, 2018, Student filed a Due Process Hearing Request1 (complaint) with the Office of Administrative Hearings naming San Francisco Unified School District. On May 2, 2018, San Francisco filed a Notice of Insufficiency 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. (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.)
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 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).
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.)
DISCUSSION
Looking at the four corners of Student’s complaint, issues and proposed resolutions, Student has alleged that beginning September 2016,2 San Francisco denied Student a Free and Appropriate Public Education by:
1. Placing Student in a moderate to severe Special Day Class with a one to one nurse,
a one to one aide, speech and language services twice a week for 15 minutes with a temporary increases of three times a week;
2. Failing to provide sufficient direct services to Student;
3. Failing to provide an Applied Behavior Analysis provider to develop functional
skills and a functional communications system;
4. Failing to hold the February 26, 2018 Individualized Education Program team
meeting with the essential members of the team (Student’s nurse); and failing to provide Student with documentation during the meeting;
5. Cancelling the April 2, 2018 IEP meeting, scheduled to discuss the ABA behavior
analyst’s observations of Student;
6. Failing to provide an activity/picture schedule developed by an ABA provider for
Student’s use in the classroom and at home;
7. Failing to provide toilet training and a diapering monitor;
8. Failing to provide home to school transportation with a one to one nurse;
2 This is subject to the two year statute of limitations.
9. Failing to deliver speech and language and other related services as a pull-out
service in a separate classroom to avoid distractions; and
10. Failing to provide Student with a quiet room for sensory breaks during the day.
The facts alleged in Student’s complaint are sufficient to put the District on notice of the issues forming the basis of the complaint. Student’s complaint identifies the issues and adequate related facts about the problem to permit District to respond to the complaint and participate in a resolution session and mediation.
Student’s proposed resolutions requests San Francisco to provide ABA services. 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 proposed resolutions stated in Student’s amended complaint are well-defined, and therefore meet the statutorily required standard of stating a resolution to the extent known and available at the time.
Therefore, Student’s statement of the claims is sufficient.
ORDER
1. The complaint is sufficient under title 20 United States Code section
1415(b)(7)(A)(ii).
2. All mediation, prehearing conference, and hearing dates in this matter are
confirmed.
DATE: May 03, 2018
DEBORAH MYERS-CREGAR
Administrative Law Judge Office of Administrative Hearings