California OAH special education order · October 18, 2019

Order of Determination of Sufficiency of Due Process Complaint

OAH Case No. 2018121031 · ALJ Cararea Lucier

OAH found Student's complaint insufficient because its two claims, for a one-on-one aide and individual speech therapy, gave no facts, time periods, or IEPs at issue; Student may amend within 14 days.

Denied Sufficiency of complaint

Summary

Konocti filed a combined Notice of Insufficiency and Motion to Dismiss against Student's complaint. The complaint raised two claims: Student needs a one-on-one aide, and Student should get individual rather than group speech therapy. OAH found both claims insufficient because they did not explain why the aide was needed or what the problem with current services was, and did not identify the time period or the IEPs at issue. The motion to dismiss was denied as moot, Student was given 14 days to file an amended complaint, and Konocti was told to file any future sufficiency challenge and motion to dismiss separately.

Why it matters

Even under liberal pleading rules, a complaint that only names a desired service is not enough; it should explain the problem, give supporting facts, and identify the time period and IEPs at issue. Parents without attorneys can ask OAH for a mediator to help frame their issues before amending.

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)
  • Ed. Code § 56505
  • Sen. Rep. No. 108-185
  • Alexandra R. v. Brookline School Dist. (D.N.H. 2009) 2009 WL 2957991

Topics

sufficiency one-on-one aide speech therapy leave to amend self-represented parent

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,

v.

KONOCTI UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2018121031

ORDER OF DETERMINATION OF SUFFICIENCY OF DUE PROCESS

COMPLAINT

On December 28, 2018, Student filed a Due Process Hearing Request, called a complaint, with the Office of Administrative Hearings, referred to as OAH, naming Konocti Unified School District. On January 16, 2019, Konocti filed a Notice of Insufficiency and Motion to Dismiss the complaint.

APPLICABLE LAW

The named parties have the right to challenge the complaint’s sufficiency.

(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 OAH 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 complaint is sufficient if it: (1) describes the problem relating to the proposed change regarding the Student’s identification, evaluation, or educational placement, or providing the Student a free appropriate public education; (2) includes facts about the problem; and (3) includes a proposed resolution 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 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 insufficiently pled claims. Student’s complaint includes the following two issues and proposed resolutions:

Problem or Complaint Number 1: Student needs an aide to be successful in school.

Proposed Resolution Number 1: Student will have a one on one aide.

Problem or Complaint Number 2: Student gets speech therapy with a group once a week.

Proposed Resolution Number 2: Student will have individual therapy.

Student’s Problem or Complaint Number 1 does not include sufficient facts as to why parent believes Student needs an aide to be successful in school, the time period of the need, and any individualized education programs, referred to as IEP, at issue.

Student’s Problem or Complaint Number 2 does not include the problem related to the current and proposed services. It does not provide Konocti with sufficient information to understand parent’s concerns and why she would like a change in service levels.

Additionally, Student did not include facts to help Konocti understand the second issue, such as the time period and IEPs at issue.

Finally, regarding Konocti’s motion to dismiss, it is moot as Student’s complaint is insufficient. If Student files an amended complaint, Konocti is instructed not to file a combined motion but to file a separate notice of sufficiency and a motion to dismiss so they may be ruled upon separately.

MEDIATOR ASSISTANCE FOR NON-REPRESENTED PARENTS: A parent without 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. Konocti’s Motion to Dismiss is denied as moot.

3. Student shall be permitted to file an amended complaint under title 20

United States Code section 1415(c)(2)(E)(i)(II).

4. 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.

5. If Student fails to file a timely amended complaint, the complaint will be

dismissed.

6. All dates previously set in this matter are vacated.

IT IS SO ORDERED.

DATED: October 18, 2019 Cararea Lucier Administrative Law Judge Office of Administrative Hearings