California OAH special education order · January 22, 2020
Order Determining Due Process Complaint Insufficient
OAH Case No. 2020010272 · ALJ Linda Johnson
OAH found Student's complaint insufficient because objecting to the school psychologist attending IEP meetings did not describe a FAPE, identification, evaluation, or placement problem; Student may amend within 14 days.
Summary
Val Verde filed a Notice of Insufficiency challenging Student's complaint. The complaint's only issue was that Parent did not want the school psychologist to speak with Student or attend IEP team meetings, and it asked OAH to order an annual IEP meeting without the psychologist. OAH found the complaint insufficient because it did not describe a problem with Student's identification, evaluation, placement, or FAPE, gave no facts on how Val Verde denied FAPE, and requested a remedy OAH cannot order. Student was given 14 days to file an amended complaint, all dates were vacated, and the complaint will be dismissed if no timely amendment is filed.
Why it matters
A due process complaint has to tie the concern to how the district denied a FAPE or handled identification, evaluation, or placement, and ask for relief OAH can actually order. An objection to a particular staff member being on the IEP team, standing alone, is not enough. Parents without attorneys can ask OAH for a mediator to help them frame their issues 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
- 71 Fed. Reg. 46,540-46541, 46699 (Aug. 14, 2006)
- Escambia County Bd. of Educ. v. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248
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.
VAL VERDE UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020010272
ORDER DETERMINING DUE PROCESS COMPLAINT INSUFFICIENT
On January 9, 2020, Student filed a Due Process Hearing Request, called a complaint, with the Office of Administrative Hearings, referred to as OAH, naming Val Verde Unified School District. On January 21, 2020, Val Verde filed a Notice of Insufficiency as to 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).
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 one issue that is insufficiently pled. Student alleges his Parent does not want the school psychologist to speak with him or attend an IEP team meeting. Student’s issue does not involve a proposed change regarding Student’s identification, evaluation, or educational placement, or providing Student a free appropriate public education, referred to as FAPE. Student does not allege any facts as to how Val Verde denied him a FAPE. Student does not allege anything other than Parent does not want the school psychologist to be a part of Student’s IEP team. The complaint fails to provide Val Verde with the required problem description and the facts relating to the problem.
Student’s proposed resolution request an order that Val Verde hold Student’s annual IEP team meeting without the school psychologist present. 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 resolution stated in Student’s complaint is not well-defined nor is the proposed resolution something that OAH can order.
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. 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.
DATED: January 22, 2020 Linda Johnson Administrative Law Judge Office of Administrative Hearings