California OAH special education order · March 18, 2019
Order of Determination of Sufficiency of Due Process Complaint
OAH Case No. 2019030004 · ALJ Judith Pasewark
OAH found Student's complaint sufficient, including a challenged proposed resolution, because it gave Garvey notice of the five claims and the remedy relied on an expert's recommendations pleaded as facts.
This case went to decision
Student v. Garvey School District: Garvey School District must fund a speech IEE and train staff on behavior after a late behavior assessment and an ignored IEE request. (2019)
Summary
Garvey filed a Notice of Insufficiency against Student's due process complaint and specifically challenged proposed resolution Number Two. That resolution asked for a 40-hour-per-week intensive applied behavior analysis program as recommended by Dr. B.J. Freeman. OAH found that the five claims and their sub-issues gave Garvey enough facts to respond and take part in a resolution session and mediation. Because Dr. Freeman's recommendations were pleaded as factual allegations, the proposed remedy met the standard of a resolution known and available to Student at the time, and all dates were confirmed.
Why it matters
A proposed remedy that rests on an expert's recommendations described in the complaint's facts will likely survive a sufficiency challenge. OAH reads pleading rules liberally, so districts generally cannot use insufficiency notices to attack how detailed a requested remedy is.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(b)(7)(A)(ii)(IV)
- Ed. Code § 56502
- Sen. Rep. No. 108-185
- Escambia County Bd. of Educ. v. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248
- 71 Fed. Reg. 46540-46541, 46699
People named in the order
- Dr. B.J. Freeman, Expert whose recommendations are cited in Student's complaint
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. 2019030004 v. ORDER OF DETERMINATION OF
SUFFICIENCY OF DUE PROCESS
GARVEY SCHOOL DISTRICT. COMPLAINT
On February 28, 2019, Student filed a Due Process Hearing Request 1 (complaint)
with the Office of Administrative Hearings naming Garvey School District. On March 15, 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, 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 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).
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.)
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).).
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’s complaint identifies the issues and adequate related facts about the problem to permit Garvey to respond to the complaint and participate in a resolution session and mediation.
Therefore, Student’s statement of the five claims, including sub-issues, is sufficient.
Garvey has challenged Student’s proposed resolution Number Two. The proposed resolution stated in Student’s complaint is as follows: Student requests an intensive systematic applied behavior analysis instructional program with structured one-on-one teaching as recommended and described by Dr. B.J. Freeman for 40 hours per week with gradual participation in early intervention with a small group of children in a structured class environment. Dr. Freeman’s recommendations are presented as factual allegations in Student’s complaint. As such, Student has met the statutorily required standard of stating a resolution to the extent known and available to him at the time.
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: March 18, 2019
JUDITH PASEWARK
Administrative Law Judge Office of Administrative Hearings