California OAH special education order · September 19, 2018
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2018090116 · ALJ Rommel P. Cruz
OAH found Student's complaint insufficient because it did not explain how the 2018-2019 IEP was deficient or how the district's handling of ant bites, self-biting, and eating concerns denied a FAPE.
Summary
Desert Sands challenged the sufficiency of Student's due process complaint, which raised two issues. OAH found Issue 1 insufficient because it did not describe how the 2018-2019 IEP was deficient, such as which goals, services, or placement were inappropriate. It found Issue 2 insufficient because, although it described ant bites at school, Student biting herself, and Student not eating at school, it did not explain how Desert Sands failed to respond or how that denied Student a free appropriate public education. Student may file an amended complaint within 14 days or the case will be dismissed, and all previously set dates were vacated.
Why it matters
A complaint must say what was wrong with the IEP and connect school incidents to a denial of FAPE; general statements and vague remedies are not enough. Parents without a lawyer can ask OAH for a mediator to help frame their issues and proposed resolutions before amending.
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, § 56505
- Sen. Rep. No. 108-185
- 71 FR 46540-46541, 46699
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. 2018090116 v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
DESERT SANDS UNIFIED SCHOOL COMPLAINT
DISTRICT.
On September 4, 2018, Parent on behalf of Student filed a Due Process Hearing Request (complaint) with the Office of Administrative Hearings naming Desert Sands Unified School District. On September 13, 2018, Desert Sands 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, 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).
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.)
DISCUSSION
Student’s complaint alleges two claims, both of which are insufficiently pled. With respect to Issue 1, Student contends that Desert Sands failed to design an appropriate individualized education program for the 2018-2019 school year. However, the complaint fails to provide a description of how the IEP was deficient. For example, the complaint fails to describe whether the goals, services, or placement offered in the IEP were inappropriate and how. Issue 1 is insufficiently pled in that it fails to provide Desert Sands with the required notice of a description of the problem and the facts relating to the problem.
Likewise, Issue 2 of Student’s complaint falls short of providing Desert Sands with an awareness of the problems relating to the proposed initiation or change concerning the identification, evaluation, or educational placement of Student, or the provision of a free appropriate public education to Student. The complaint alleges Student was bit by ants at school resulting in an allergic reaction. The complaint further claims Student bit herself and that Desert Sands could not explain the incident. The complaint also claims Student does not eat at school. However, the complaint fails to describe how Desert Sands allegedly failed to respond appropriately to these concerns and how any alleged failures on the part of Desert Sands to act denied Student a free appropriate public education. Accordingly, Issue 2 is insufficiently pled.
Student’s proposed resolutions requests Desert Sands to develop an appropriate IEP and to provide Student with a full-time paraprofessional support. 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 complaint are not well-defined as it fails to describe specific aspects of the IEP that Student seeks as a remedy, such as a particular goal or service.
MEDIATOR ASSISTANCE FOR NON-REPRESENTED PARENTS: A parent who is not represented by an attorney may request that OAH provide a mediator to assist the parent in identifying the issues and proposed resolutions that must be included in a complaint. (Ed. Code, § 56505.) 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 section title 20 United States
Code 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).
3. The amended complaint shall comply with the requirements of title 20 U.S.C.
section 1415(b)(7)(A)(ii), and shall be filed not later than 14 days from the date of this order.
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: September 19, 2018
ROMMEL P. CRUZ
Administrative Law Judge Office of Administrative Hearings The filing of an amended complaint will restart the applicable timelines for a due process hearing.