Special Education Tip-of-the-Day: Due Process—Insufficiency Objections and Amending the Due Process Complaint

by Amanda Glass, Equal Justice Works Fellow and Rose Daly-Rooney, Legal Director

Yesterday, we provided an overview of the due process hearing procedure, including the steps involved and important timelines. Today, we will break down “Step 2”: insufficiency objections and amending the complaint.

Insufficiency Objections

 What Makes a Complaint “Sufficient”?

For a due process complaint to go forward, it must be “sufficient.” A sufficient complaint is one that includes all of the information required under the Individuals with Disabilities Education Act (IDEA). That is:

1. The name of the child;
2. The address of the child’s residence;
3. The name of the child’s school;
4. In the case of a homeless child or youth, the child’s contact information and the name of the school the child is attending;
5. A description of the nature of the problem of the child relating to the proposed or refused action, including facts relating to the problem;
6. A proposed resolution of the problem to the extent known and available to the complaining party at the time. 

What is an Insufficiency Objection?

If a due process complaint fails to include one of the elements listed above, or if the responding party doesn’t understand the claim, they may file an insufficiency objection or motion to dismiss the due process complaint.  An insufficiency objection is the way the responding party alerts the Administrative Law Judge (ALJ) that the party does not believe that the due process complaint contains all of the information required by law. It is also a way to ensure that the parties understand and agree on the nature of the due process complaint before any hearing begins.

What Does an ALJ Do with an Insufficiency Objection?

The ALJ must decide within 5 days of receiving the insufficiency objection whether or not the complaint is sufficient. The ALJ must notify both parties in writing of that decision.

If the ALJ finds the complaint is insufficient, he or she may then give the complainant an opportunity to amend the complaint to add the missing information or better explain the problem or proposed resolution. If the ALJ determines that there are too many errors in the complaint, the ALJ may dismiss the complaint altogether. That would mean the complaining party would need to start the process over again by filing a new complaint.

If the responding party does not file an insufficiency objection, the ALJ will assume the due process complaint is sufficient.

Amending the Due Process Complaint

When Can a Due Process Complaint Be Amended?

After the due process complaint has been filed, it can be amended (changed/fixed) if:

• the parties mutually agree in writing to the amendment and are given the opportunity for a resolution meeting; or
• the ALJ orders the complaint be amended.

However, a complaint cannot be amended any later than five days before the hearing.

How Do I Amend a Due Process Complaint if it is Insufficient?

The easy answer is, if you saved your due process complaint in a software program, pull up that document, make any required changes, title your document “Amended Due Process Complaint,” and resubmit.

• If the ALJ ordered you to file an amended due process complaint or the school district agreed to the amendment, go to the Office of Administrative Hearings (OAH) Electronic Submission Portal and upload it.
• If you were not ordered to amend the due process complaint (but want to anyway) and the other side will not agree to let you amend it, you may file a motion asking the ALJ for permission to amend the complaint. Provide the ALJ with a copy of your proposed amended due process complaint to review in order to rule on your motion. The OAH website provides information about how to file motions.

The tougher question is, how do I fix my due process complaint if the ALJ ruled it was insufficient?

• The ALJ’s ruling regarding the insufficiency of your complaint may give you a roadmap to what is missing and what the ALJ expects to see in the amended due process complaint.
• If you don’t understand what is missing after reading the ALJ’s Order, ask for legal help from an attorney who handles special education cases or contact DRAZ. For the consultation, be ready to provide a copy of your due process complaint and the ALJ’s Order regarding the sufficiency of the complaint.
• If advice is not available, go back to the list of requirements for a due process complaint and make sure you covered each element. For more ideas of what to include in the section of the complaint regarding a proposed resolution, see DRAZ’s forthcoming post on remedies.

What Happens When a Due Process Complaint is Amended?

When a complaint is amended, the timeline for convening the resolution meeting (within 15 days of receiving the complaint) and time period for resolving the due process complaint (within 30 days of receiving complaint) start again on the date the amended complaint is filed.