California OAH special education order · January 25, 2023

Order of Determination of Sufficiency of Due Process Complaint

OAH Case No. 2023010165 · ALJ Cole Dalton

OAH found Student's six-issue complaint sufficient. The ALJ held that missing IEP dates and disputes over whether Parent may choose school personnel are legal questions or prehearing matters, not pleading defects.

Complaint found sufficient Sufficiency of complaint

Summary

Orcutt challenged the sufficiency of Student's complaint, which raised six issues. The issues included Orcutt's refusal to let Student's privately funded applied behavior analysis therapist accompany him at school, least restrictive environment placement, medically necessary behavioral health services, prior written notice, and in-home services during distance learning. OAH found all six issues sufficiently pled. Orcutt can identify the IEPs at issue from Student's records and the two-year limitations period, and the ALJ will pin down dates at the prehearing conference. Whether the law gives Parent the rights claimed is a legal question that is not decided at the sufficiency stage.

Why it matters

A complaint does not have to list specific IEP dates or prove its legal theories to be sufficient, as long as the facts give the district fair notice. Districts cannot use a sufficiency challenge to argue the merits of a claim, such as whether a parent may choose who provides services at school.

Key authority cited

  • 20 U.S.C. § 1415(b)(7)(A)
  • 20 U.S.C. § 1415(c)
  • Sen. Rep. No. 108-185 (2003)
  • 71 Fed.Reg. 46540-46541, 46699 (Aug. 14, 2006)
  • Escambia County Bd. of Educ. v. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248

Topics

sufficiency aba therapist at school least restrictive environment prior written notice predetermination parent participation

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:

PARENTS ON BEHALF OF STUDENT,

v.

ORCUTT UNION SCHOOL DISTRICT.

OAH CASE NUMBER 2023010165

ORDER OF DETERMINATION OF SUFFICIENCY OF DUE

PROCESS COMPLAINT

JANUARY 25, 2023

On January 6, 2023, Student filed a Due Process Hearing Request, called a complaint, with the Office of Administrative Hearings, referred to as OAH, naming Orcutt Union School District. On January 18, 2023, Orcutt filed a notice of insufficiency as to the complaint.

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.)

Student’s complaint alleges six issues, and certain factual allegations which, when read together, provide an awareness and understanding of the issues forming the basis of the complaint.

Student sufficiently describes the alleged problems relating to the proposed changes or refusals to change Student’s educational placement, or the provision of a free appropriate public education to Student. The complaint alleges facts sufficient to allow Orcutt to know how to prepare for the hearing and how to participate in resolution session and mediation.

Orcutt can easily determine individualized education programs, or IEPs, at issue by reviewing Student’s records. As the complaint does not allege circumvention of the statute of limitations, Orcutt can surmise the claims cover the two years prior to the complaint’s filing and review IEPs during that time frame. Moreover, the Administrative Law Judge clarifies issues with the parties during the prehearing conference. At that time, IEP and other dates will be identified in particularity. While it may be preferable to allege IEP and other dates in Student’s complaint, such pleading is not required, where other facts are pled, for a complaint to be deemed sufficient.

Issue One alleges Orcutt denied Student a FAPE by failing to meaningfully consider his request to have his applied behavior analysis treatment, elsewhere called therapist, accompany Student at school, thereby preventing meaningful parent participation or predetermining that Orcutt would deny the request. Whether Student or Parent is allowed to determine Orcutt’s personnel issues is a question of law and does not make the complaint insufficient. Issue One is sufficiently pled to put Orcutt on notice of the basis of Student’s claim.

Issue Two alleges Orcutt denied Student a FAPE by denying Parent’s right to participate in the decision making process by refusing to allow her to determine who would provide Student’s applied behavior analysis at school. Whether Parent is allowed to determine personnel issues is a question of law and does not make the complaint insufficient. Issue Two is sufficiently pled to put Orcutt on notice of the basis of Student’s claim.

Issue Three alleges Orcutt denied Student a FAPE by failing to consider or offer Student placement in his least restrictive environment. The facts allege an offer in an inclusion class outside of Student’s neighborhood school, rather than placement in a regular class at his neighborhood school. Issue Three is sufficiently pled to put Orcutt on notice of the basis of Student’s claim.

Issue Four alleges Orcutt denied Student a FAPE by failing to offer an IEP designed to develop or restore, to the maximum extent practicable, Student’s functioning that meet all criteria of state and federal law for medically necessary behavioral health services. Whether the law required Orcutt to offer medically necessary behavioral health services is a legal question, not considered when determining the sufficiency of a complaint. Issue Four is sufficiently pled to put Orcutt on notice of the basis of Student’s claim.

Issue Five succinctly alleges Orcutt denied Student a FAPE by failing to provide prior written notice regarding the refusal to allow Student’s privately funded applied behavior analysis at school and the offer of an inclusion classroom. Issue Five is sufficiently pled to put Orcutt on notice of the basis of Student’s claim.

Issue Six succinctly alleges Orcutt denied Student a FAPE by predetermining the refusal to allow Student in-home services during periods of distance learning. Issue Six is sufficiently pled to put Orcutt on notice of the basis of Student’s claim.

Based upon the foregoing, OAH orders as follows:

1. Student’s complaint is sufficient under section title 20 United States Code

1415(b)(7)(A)(ii).

2. All prehearing conference and due process hearing dates in this matter are

confirmed.

IT IS SO ORDERED.

Cole Dalton Administrative Law Judge Office of Administrative Hearings