California OAH special education order · November 20, 2019
Order Granting Notice of Insufficiency of Second Amended Complaint and Granting Leave to Amend as to Issues Two, Three and Four
OAH Case No. 2019090479 · ALJ Jennifer Kelly
OAH found Issues Two, Three and Four of Student's second amended complaint insufficient because Student did not tie the claims to a denial of FAPE, and allowed one more amendment.
Summary
Freshwater challenged the sufficiency of Student's Second Amended Complaint. OAH found that Issue Two, about poor communication with parents over an alleged abuse incident, still did not explain how it denied Student a free appropriate public education (FAPE). Issue Three, which disputed how a California Department of Education complaint was resolved, still did not connect to Student's educational program, needs, accommodations, or services. New Issue Four, about failing to report the alleged abuse to law enforcement, was not a separate issue because it overlapped with the already-sufficient Issue One; Student was given 14 days to file a single third amended complaint that includes all issues, including Issue One, or the hearing would go forward on Issue One only.
Why it matters
Complaints about communication failures or a state complaint outcome must explain how those problems affected the student's special education or denied FAPE, or OAH will not hear them. Parents amending a complaint should restate every issue they want heard in one document, including issues already found sufficient, so none are lost.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)(ii)
- 20 U.S.C. § 1415(c)(2)(D)
- 20 U.S.C. § 1415(c)(2)(E)(i)(II)
- Ed. Code, § 56505
- Escambia County Bd. of Educ. v. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248
- 71 Fed.Reg. 46540-46541, 46699 (Aug. 14, 2006)
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,
v.
FRESHWATER ELEMENTARY SCHOOL DISTRICT.
OAH CASE NUMBER 2019090479
ORDER GRANTING NOTICE OF INSUFFICIENCY OF SECOND AMENDED
COMPLAINT AND GRANTING LEAVE TO AMEND AS TO ISSUES TWO,
THREE AND FOUR
On September 13, 2019, Student filed a Due Process Hearing Request, called a complaint, with the Office of Administrative Hearings, referred to as OAH, naming Freshwater Elementary School District, the California Commission on Teacher Credentialing, the California Department of Education and several individuals who serve as superintendent and trustees for Freshwater Elementary School District. On September 23, 2019, OAH issued orders dismissing the individually named defendants because they do not qualify as public agencies over which OAH has jurisdiction in a complaint alleging violations of the Individuals with Disabilities in Education Act or California Special Education Laws. On September 23, 2019, OAH issued a further order dismissing the California Department of Education because it is not the local education agency responsible for providing special education or related services to Student. On November 7, 2019, OAH dismissed the California Commission on Teacher Credentialing on similar grounds.
On September 26, 2019, Freshwater filed a Notice of Insufficiency as to the complaint. On September 30, 2019, OAH issued an order finding the initial complaint was insufficiently pled under title 20 United States Code section 1415 (c)(2)(D).
On October 21, 2019, Student filed an Amendment to OAH Complaint. On October 24, 2019, Freshwater filed a Notice of Insufficiency. On October 28, 2019, OAH issued an order finding Issue One of Student’s complaint sufficient under title 20 U.S.C.
section 1415(b)(7)(A)(ii), and finding Issues Two and Three insufficiently pled under title 20 U.S.C. section 1415(c)(2)(D). Student was granted leave to file an amended complaint under title 20 U.S.C. section 1415(c)(2)(E)(i)(II).
On November 4, 2019, Student filed a Second Amended Complaint. On November 19, 2019, Freshwater filed a Notice of Insufficiency as to Student’s Second Amended 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).
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
The Second Amended Complaint omits Issue One pled in Student’s amended pleading dated October 21, 2019, even though OAH’s order dated October 28, 2019, found that Issue One is sufficiently pled. OAH assumes issue one was inadvertently omitted from Student’s Second Amended Complaint.
Issue Two in Student’s Second Amended Complaint alleges Freshwater failed to communicate with Student’s parents about an alleged incident of abuse. The amended complaint does not state how the purported miscommunications between Freshwater and parents denied Student a free appropriate public education, referred to as FAPE, as required by OAH’s October 28, 2019 order.
Issue Three reiterates Student’s disagreement with the resolution of Student’s complaint filed with the Department of Education. Student fails to allege how the resolution of Student’s complaint with the California Department of Education relates to Student’s educational program, or Student’ needs, accommodations or services, as required by OAH’s October 28, 2019 order.
Student adds a new Issue Four to the Second Amended Complaint. Student alleges Freshwater failed to report alleged abuse of Student to law enforcement. These facts do not raise a new issue for resolution, but instead relate to Issue One in the amended complaint dated October 11, 2019, which OAH previously found to be sufficient.
Student’s Second Amended Complaint is insufficient as to Issues Two, Three and Four. Student does not state facts describing how Freshwater’s failure to communicate with parents denied Student a FAPE, as required by OAH’s October 28, 2019 order.
Therefore, Issue Two remains insufficiently pled. Student further fails to explain how the resolution of its complaint with the California Department of Education relates to Student’s educational program, or Student’s needs, accommodations or services as stated in OAH’s October 28, 2019 order. Therefore, Issue Three remains insufficiently pled.
Student’s newly pled Issue Four does not raise a separate issue for resolution.
Student alleges facts about how Freshwater responded to the alleged incident of abuse and whether it was required to report the incident to law enforcement. These additional facts relate to Issue One raised in Student’s complaint dated October 11, 2019.
Therefore, the newly plead Issue Four does not create a separate issue for resolution by
OAH.
MEDIATOR
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. Issue One of Student’s complaint dated October 11, 2019, is sufficiently pled
under title 20 United States Code section 1415(b)(7)(A)(ii).
2. Issues Two, Three and Four in Student’s Second Amended Complaint dated
November 4, 2019 are insufficiently pled under title 20 United States Code section 1415(b)(7)(A)(ii).
3. Student shall be permitted to file a third amended complaint that states or
restates all facts in a single document. 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. The filing of the amended complaint will restart the applicable timelines for a due process hearing.
4. If Student fails to file a timely amended complaint, the hearing shall proceed
only on Issue One in Student’s complaint dated October 11, 2019.
5. If Student files a Third Amended Complaint, Student shall include all issues for
hearing in that document, including Issue 1 from the October 11, 2019 Amended Complaint.
IT IS SO ORDERED.
DATED: November 20, 2019 Jennifer Kelly Administrative Law Judge Office of Administrative Hearings