California OAH special education order · February 1, 2019
Order Determining Due Process Complaint's Sufficiency
OAH Case No. 2019010646 · ALJ Rebecca Freie
OAH found Student's complaint sufficient. A lack of OAH jurisdiction over ADA and Section 504 retaliation claims is not a reason to call a complaint insufficiently pled.
Summary
Garvey filed a notice of insufficiency challenging Student's second issue. That issue claimed Garvey retaliated against Parent, in violation of the ADA and Section 504, by sending an administrator and a police officer to Student's home about attendance. OAH found both issues sufficiently pled, including the predetermination claim about the December 17, 2018 IEP meeting, because the complaint was neither vague nor confusing. The ALJ agreed that OAH lacks jurisdiction over ADA and Section 504 claims but said this is not a ground for insufficiency, and Garvey may use other procedural vehicles to raise it.
Why it matters
A notice of insufficiency tests only whether a complaint gives fair notice of the claims. Jurisdictional challenges to claims, such as ADA or Section 504 claims, must be raised another way, for example through a motion to dismiss.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(C)
- Ed. Code § 56502(d)(1)
- 29 U.S.C. § 794
- Sen. Rep. No. 108-185
- 71 FR 46540-46541
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. 2019010646 v. ORDER DETERMINING DUE
PROCESS COMPLAINT’S
GARVEY SCHOOL DISTRICT. SUFFICIENCY
On January 16, 2019, Student filed a due process hearing request 1 (complaint) with the Office of Administrative Hearings naming Garvey School District. On January 28, 2019, Garvey 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, 1A 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 46540-46541, 46699.)
DISCUSSION
The facts alleged in Student’s complaint are sufficient to put Garvey on notice of the issues forming the basis of the complaint. Student identifies two issues in the complaint.
The first issue is a claim that Garvey predetermined its offer of services to Student at an individualized education program team meeting on December 17, 2018, thus denying Parent meaningful participation in the IEP development process. The complaint contains facts that support this issue.
The second issue in Student’s complaint is a claim that Garvey retaliated against Parent by sending a Garvey administrator, accompanied by a police officer, to Student’s home on November 28, 2018, to discuss Student’s attendance issues. Student claims this alleged retaliation violated “[b]oth the ADA [Americans with Disabilities Act] and Section 504 [§ 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794; see 34 C.F.R. § 104.1 et. seq.
(2000)]. It is this issue that Garvey claims is insufficiently plead.
Student’s complaint is neither vague nor confusing. Student has provided information to Garvey which provides it with sufficient information to know how to prepare for the hearing and how to participate in resolution sessions and mediation. Both claims are sufficiently plead. Although Garvey correctly states in its notice of insufficiency that OAH does not have jurisdiction over ADA and Section 504 claims, this is not a ground for finding the complaint insufficiently plead. There may be other vehicles Garvey can use to address this issue, and nothing in this order precludes Garvey from doing this.
ORDER
1. Student’s 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: February 1, 2019
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings