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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bickford v. State, Dept of Education and Early Development (02/09/2007) sp-6097

Bickford v. State, Dept of Education and Early Development (02/09/2007) sp-6097, 155 P3d 302

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11731
Appellant, )
) Superior Court No. 3AN-99-3470 CI
v. )
AND EARLY DEVELOPMENT, and ) No. 6097 - February 9, 2007
Appellees. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Anchorage, John  Suddock,

          Appearances:   Pamela L.  Bickford,  pro  se,
          Anchorage.  Stephen  C.  Slotnick,  Assistant
          Attorney   General,  and  David  W.  M rquez,
          Attorney General, Juneau, for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh,  and  Carpeneti, Justices.   [Fabe,
          Justice, not participating.]

          BRYNER, Chief Justice.
          Pamela  Bickford submitted an administrative  complaint
to  the  Alaska  Department of Education and  Early  Development,
alleging  that  the department had violated the Individuals  with
Disabilities  Education  Act (IDEA) by  declining  to  decide  an
earlier  complaint  of  hers unless she resubmitted  a  clarified
version.   After investigating the new complaint, the  department
ruled   that  Bickfords  original  complaint  had  been  properly
rejected.   The  main issue Bickford now appeals is  whether  the
department violated the IDEA by rejecting her original  complaint
instead  of  deciding  its merits.  Because the  first  complaint
raised  issues beyond the departments jurisdiction and failed  to
specify  whether Bickford meant to file it as a civil  action,  a
request   for   an  IDEA  due  process  hearing,   or   an   IDEA
administrative  complaint, we hold that the  department  properly
returned it to Bickford for clarification.
     A.   Summary of Statutory and Regulatory Framework
          Before  we describe the events that led to this appeal,
it  will  help  to summarize the legal framework in  which  those
events occurred.  This case centers on the departments compliance
with  the  IDEA, a federal law dealing with special education  of
children.1   The IDEA requires any state receiving federal  funds
for  special  education to adopt and enforce laws and regulations
complying  with  the IDEAs requirements.2  Alaska  receives  IDEA
funding  and  must  therefore comply with its requirements.   The
IDEA  also  creates various procedures designed to allow  parents
and other interested parties ways to ensure state compliance with
the  Acts requirements.  Two of those procedures are particularly
relevant   here:   complaints  for  due  process   hearings   and
administrative complaints.
          1.   Complaints for due process hearings
          The  IDEA provides that any parent who believes that  a
school  has  misidentified, misevaluated, improperly  placed,  or
otherwise  denied a free and appropriate public  education  to  a
qualifying child has a right to file a complaint for an impartial
due  process hearing.3  These hearings are designed to  focus  on
disputes   concerning  discrete  decisions   involving   specific
children  and the childrens parents; they are formal adjudicatory
proceedings  in  which parents and children have  the  rights  to
counsel,  to present evidence, and to call, confront, and  compel
the  attendance  of  witnesses.4  Due process hearings  are  also
required  to  be expedited: once a parent asks for a  hearing,  a
hearing  officer  has only forty-five days in which  to  issue  a
final,  written decision.5  The IDEA gives states the  option  of
specifying whether due process hearings are the responsibility of
local school systems or the state system.6  Alaska has chosen  to
require  complaints for due process hearings to be  made  to  the
local district from which the complaint arises.7
          2.   Complaints for administrative investigations
          The IDEA separately entitles any interested persons  or
groups to initiate investigations of compliance with the IDEA  by
submitting an informal complaint to the state educational  agency
in  Alaska,  the Department of Education.8  When  it  receives  a
complaint  for  an  administrative hearing, the  department  must
carry   out  an  independent  on-site  investigation,  give   the
complainant an opportunity to supply additional information about
the  allegations contained in the complaint, determine whether  a
violation  of  the IDEA has occurred and, within  sixty  days  of
accepting  the complaint, issue a written decision  supported  by
          factual findings and conclusions of law, as well as  an
explanation of its reasons.9  The departments final decision must
also  include . . . [p]rocedures for effective implementation  of
the  [agencys]  final decision, including, if  needed,  technical
assistance  activities, negotiations, and corrective  actions  to
achieve compliance.10
     B.   Bickfords First Complaint
          Pamela  Bickford  is  the  mother  of  a  student  once
identified by the Anchorage School District as learning disabled.
In the fall of 1998, she came to believe that the school district
was  misusing testing procedures for evaluating special  learning
disabilities.   On  October 9, 1998, Bickford mailed  a  document
entitled  Complaint and Request for Due Process  Hearing  to  the
board  and  commissioner  of education,  and  to  the  board  and
superintendent of the Anchorage School District.  The  complaints
caption   listed  eight  individuals  as  plaintiffs,   including
Bickford, and asserted that the plaintiffs were acting  on  their
own  behalf  and  on  behalf  of a class  of  similarly  situated
persons.   The  caption named as defendants the Anchorage  School
Board  and  School District Superintendent as well as the  Alaska
State   Board  of  Education  and  the  Alaska  Commissioner   of
Education.   Bickford  was the only plaintiff  who  had  actually
signed the complaint.
          Bickfords  complaint  set out  twenty  separate  counts
accusing the Anchorage School District of violating IDEA student-
evaluation procedures,11 and of more broadly violating section 504
of the Rehabilitation Act,12 the Americans with Disabilities Act,13
section  1983  of  the  Civil Rights Act,14  and  the  Fourteenth
Amendment  to  the  United  States Constitution.   The  complaint
sought  various  forms of relief for these violations,  including
injunctive relief, costs and fees, and [s]uch other or additional
relief  as  this  Court may deem just and proper.   Although  the
format of the complaint, the violations it alleged, the relief it
requested, and the formal certificate of service that accompanied
it  all  seemed  to suggest that it might have been  drafted  for
filing  as a civil court action, the complaint failed to  specify
where it was actually meant to be filed.
          After  reviewing  the  complaint, the  school  district
thought  that  it  might  be  a draft legal  complaint  but  also
recognized that it might have been meant in part as a request for
a  due  process  hearing under the IDEA.15   As  a  precautionary
matter,  the district appointed a hearing officer to oversee  the
complaint,  as  required under applicable  regulations  governing
requests  for due process hearings.  Bickford later informed  the
hearing  officer that she did not intend to proceed with her  due
process hearing request, so no hearing was held.16
          Meanwhile,   the  department  had  referred   Bickfords
complaint  to  the attorney generals office; after reviewing  it,
Assistant Attorney General Tom Dahl  returned it to Bickford with
a  letter  asking for clarification because of several procedural
problems that it presents.  Dahl described three particulars that
needed to be clarified.
          Dahl  began by observing that only Bickford had  signed
the complaint.  He asserted that complaints must be signed by all
          complainants or by their attorney.  Since the state bar
association  had informed him that Bickford was not an  attorney,
Dahl pointed out that she was not entitled to bring an action  on
behalf of anyone other than herself.
          Next,  Dahl  noted that no court had been specified  in
the  complaint, but that Bickford had requested injunctive relief
under the federal rules of civil procedure.  If the complaint was
intended to initiate a federal civil proceeding, Dahl asked  that
Bickford name the federal court she had in mind and clarify  what
federal  question  she was presenting.  If, on  the  other  hand,
Bickford  intended  the complaint to initiate proceedings  either
under  34  C.F.R.  300.506 [mediation procedure] or 4 AAC  52.500
[the   state   code   provision  governing  IDEA   administrative
complaints17], Dahl informed her that she would have  to  restate
the  claim on behalf of [her] child and [herself] alone, and  ask
for  the  state to investigate the complaint as provided  in  the
[latter] regulation.
          Last,  Dahl  noted  that if Bickford had  intended  her
complaint  to initiate a civil action, neither state nor  federal
courts  would  allow  her to sue the school board  without  first
exhausting  administrative procedures.  If, on  the  other  hand,
Bickford  was  attempting to request a due process hearing,  Dahl
claimed  that  the school district, not the department,  was  the
proper defendant as, under federal law, the state boards role was
limited to hearing appeals from local districts final decisions.
          Indicating that these deficiencies made it difficult to
determine how Bickford wanted to proceed, Dahl informed her  that
the  department  would take no further actions unless  and  until
Bickford clarified her intentions.
          Bickford responded to  Dahls letter with a letter dated
December  7,  1998, signed by Bickford and seven  other  parents,
addressing each of Dahls enumerated points.
          Bickford acknowledged that she was not an attorney, and
she  wrote  that it had not been her intent to act as  one.   She
noted  that a 1993 brochure, Your Rights as the Parent of a Child
Who   Experiences  a  Disability,  featured  a  section  entitled
Complaint   Procedure  that  cite[d]  federal   regulations   and
          The  department will review, investigate  and
          take appropriate action on:
          300.662  . . . . written complaints  alleging
          that  a  district or other educational agency
          is  acting  contrary  to [state]  or  federal
          requirements for special education.
It was Bickfords understanding, she clarified, that the complaint
procedure was informal and parent friendly. . . [t]he form of the
complaint  and  identification of who may submit a complaint  not
being  identified.   She then accused the  department  of  having
improperly dismiss[ed] her complaint on the grounds that she  had
failed  to satisfy a procedural requirement that neither she  nor
any of the other parents ever knew existed:
          [Y]our  dismissal  of our  complaint  without
          giving  us  the opportunity to  satisfy  your
          requirement  that all persons  party  to  the
          complaint    submit   an   actual   signature
          acknowledging  their joining  the  complaint,
          sets  out  a  standard of which we  were  not
          Second,  Bickford  clarified that  no  court  had  been
identified   in   her   complaint   because   the   State   [IDEA
Administrative-]Complaint Procedures,  34  CFR   300.660-300.662,
was  the  intended jurisdiction of our complaint.  (She  did  not
acknowledge,  though,  that  this was  the  first  time  she  had
explicitly invoked 34 C.F.R.  300.660-.662 (1998)).
          Finally,  Bickford claimed that the  department  was  a
proper  defendant in her action because the department  qualified
as  an other educational agency as the term was used in 34 C.F.R.
300.660-.662 (1998), and because the state had a federal duty  to
monitor local compliance with the IDEA.
          Bickford summed up by asserting that her action  was  a
class  action, that Dahl had failed to acknowledge that the state
had  mandated complaint procedure[s], and that she and the  other
parents  believed  that  they  had exhausted  the  administrative
remedies  available to them.  Based on these assertions, Bickford
indicated  that she would not resubmit a clarified  complaint  to
the  department  but instead planned to file  this  complaint  in
District Court in Anchorage.  Evidently, Bickford did file a suit
against  the  department and school board in  the  United  States
District  Court for the District of Alaska; apparently  the  suit
was  dismissed  and the United States Court of  Appeals  for  the
Ninth Circuit eventually affirmed the dismissal.18
     C.   Bickfords Second Complaint
          On  May  24,  1999,  Bickford filed a second  complaint
entitled,  Complaint  and  Request for Due  Process  Hearing  for
Violations  of  the Individuals with Disabilities Education  Act.
The  complaint  included as plaintiffs (and was  signed  by)  all
eight  of  the plaintiffs from Bickfords original complaint;  but
the only defendant it named was the departments Office of Special
Education Programs.  In the complaint, Bickford alleged that  the
way  the  department  had  handled  her  original  complaint  had
violated the IDEA. Though her allegations were largely limited to
IDEA  violations, she also requested that the department issue  a
finding that the Alaska Department of Education has not fulfilled
its  duty  to  provide procedural protections under Section  504.
Bickford also  mentioned the ADA in her second complaint but  did
not  allege  any  ADA violations, and did not  request  that  the
department find that Assistant Attorney General Dahls actions had
violated the ADA.
          The  department  construed  the  new  filing  to  be  a
complaint  seeking both a due process hearing and  administrative
investigation;   it   thus  responded  by  asking   for   several
clarifications.  It noted that administrative complaints  are  to
be  distinguished  from complaints for due process  hearings  and
that  the  nature of Bickfords complaint therefore needed  to  be
clarified.  It also asked Bickford to make clear whether she  was
          bringing her new complaint on behalf of the named complainants,
or  whether the listed parents were asserting separate complaints
on  behalf  of  their own children.  In addition, the  department
noted  that Bickfords new complaint seemed to include allegations
of  ADA  and section 504 violations, which the department had  no
authority  to  address.   Finally,  it  sought  to  confirm   its
understanding of the issue(s) to be the subject of the  complaint
investigation stating that it believed the issue to be [d]id  the
Department  follow the complaint procedures as  required  by  the
          Bickford  replied with a two-page letter in  which  she
clarified  that  she  was, indeed, requesting  both  a  complaint
investigation  and a due process hearing and had styled  the  new
complaint  as  she  had  so  as to give  the  Department  maximum
flexibility   in  addressing  [her]  concerns.    Bickford   also
welcome[d] the states remarks regarding the ADA and section  504,
since they had confirmed for her that those issues could only  be
resolved  in  a federal court.  Finally, Bickford confirmed  that
she  understood the departments position to be that her complaint
only  sought  an  investigation of one issue  Did the  Department
follow the complaint procedures as required by the IDEA?  but did
not confirm that this comported with her own understanding of the
          Bickford  and the department then held a teleconference
to  further settle matters.  During the teleconference,  Bickford
abandoned her request for a due process hearing, and agreed  that
the  only issue to be investigated was whether the department had
violated IDEA complaint procedures.  The department thus  treated
Bickfords  second  complaint as being  solely  an  administrative
special   education   complaint  filed  under   its   regulations
implementing   the   IDEA.19   Accordingly,   it   appointed   an
investigator, Betty Barats, to perform the required investigation
of Bickfords administrative complaint.
          In  performing her investigation, Barats discerned  six
specific  allegations  of wrongdoing in Bickfords  administrative
          [1.] A  due process hearing was not completed
               within 45 days of the written request.
          [2.] A  written decision was not received  by
               the complainant within 60 days.
          [3.] In  spite of numerous calls to the State
               Department of Education, not one  parent
               received   correspondence   about    the
          [4.] The  letter from the Assistant  Attorney
               General  did not address the  merits  of
               the complaint.
          [5.] The  Assistant Attorney General did  not
               respond  to  a  letter signed  by  eight
               parents on December 7, 1998.
          [6.]       The  State Department of Education
          did not      have     appropriate     written
               policies,  practices and procedures  for
               the filing and handling of complaints.
          Barats  issued  twenty-two findings of fact  addressing
these  points but found no evidence of a violation of law, though
she  concluded that Dahl had made one misleading statement in his
letter   to  Bickford.   Barats  also  determined  that  it   was
reasonable  to  interpret the intent [of Bickfords complaint]  as
either a request for a Due Process Hearing or notification  of  a
legal action and she closed her report with a recommendation that
Bickford re-submit her complaint in a less confusing form:
          The complainant chose to use a format that is
          common  in  the  legal  arena  resulting   in
          confusion around the intent of the complaint.
          There   are  procedures  in  place  for   the
          handling  of such complaints, and  the  facts
          uncovered  in  this  investigation   do   not
          present evidence of violation of law.
          This   investigator   would   encourage   the
          complainant to re-submit the complaint to the
          appropriate department, being sure to  follow
          the  instructions provided in the  Notice  of
          Procedural  Safeguards: Parental  Rights  for
          Special Education booklet.
          Commissioner  of  Education Richard  S.  Cross  adopted
Baratss decision and  dismissed Bickfords complaint.
     D.   Bickfords Appeal to the Superior Court
          Bickford  appealed the commissioners  decision  to  the
superior  court.  On appeal, she initially moved  for  a  remand,
asserting that the commissioner had improperly issued a  decision
without  affording her a right to a hearing.  The superior  court
granted  her motion and remanded the case to the department  with
directions  to receive testimonial and documentary evidence  that
[Bickford]   seeks  to  include  in  the  record.  Although   the
department  conducted a hearing on remand, no  new  evidence  was
disclosed  with  which  to  supplement  the  record  [and]   [n]o
additional documents were admitted into evidence.
          Bickford  then  moved  for  summary  judgment  in   the
superior  court.  Her motion sought to expand the  scope  of  the
appeal  to  include  not just the procedural  issues  decided  in
response  to her second complaint but also the procedural  issues
regarding   the  original  complaint.   Thus,  in   addition   to
challenging  the  departments  refusal  to  accept  her  original
complaint, Bickford asked the superior court to remand  the  case
to  the  department and require it to address the merits  of  the
issues  raised  in  the original complaint.  In  support  of  her
motion  for summary judgment, Bickford submitted a Corrected  and
expanded  version  of  the  complaint  she  originally  filed  on
October 9, 1998.
          After  considering the departments opposition, Superior
Court  Judge John Suddock affirmed the commissioners decision  to
dismiss  Bickfords  case, determining that  investigator  Baratss
findings  and conclusions were supported by substantial  evidence
and not contrary to law.  The court declined to address Bickfords
motion to grant summary judgment on new issues not considered and
decided  by  Barats,  explaining that  summary  judgment  is  not
permitted  under  the  Appellate Rules  and  that  the  documents
offered  in support of the new issues were outside the  scope  of
this  courts  order allowing supplementation of  the  record  and
supplemental briefing.
          After considering a motion by Bickford asking the court
to  reconsider various aspects of its ruling, the superior  court
summarily denied the motion, and Bickford filed this appeal.
     A.   Standards of Review
          Bickford  argues that the superior court was  wrong  to
dismiss  her  second complaint because the department  mishandled
her  original complaint.  In particular, she now argues that when
the  department returned her original complaint to her,  it  both
violated   IDEA,  ADA,  and  section  504  complaint  resolution-
procedures,  and  denied her procedural due  process.   She  also
argues that the superior court did not have jurisdiction to  hear
this  dispute.   In  response,  the  department  argues  that  no
provision  of  federal law governed the processing  of  Bickfords
ambiguous  complaint  and that the departments  decision  to  ask
Bickford  to clarify her intent was entirely proper.   It  argues
that  the  superior  court  had jurisdiction  to  hear  Bickfords
administrative  appeal,  and it asks us to  affirm  the  superior
courts  decision  dismissing Bickfords case because  Commissioner
Crosss  decision to adopt investigator Baratss report was not  an
abuse of discretion.
          When  the superior court acts as an intermediate  court
of  appeal  in an administrative matter, we independently  review
the  decision  of the administrative agency.20 For  questions  of
fact, we apply a substantial evidence standard, asking whether an
agencys  findings are supported by such relevant  evidence  as  a
reasonable  mind  might accept to support a conclusion.  21   For
issues  of  law not involving agency expertise, such as statutory
interpretation   and   constitutional  issues,   we   utilize   a
substitution  of  judgment  or independent  judgment  standard.22
Under  this standard, we are free to substitute our own  judgment
for  the  agencys  even if the agencys decision had a  reasonable
basis  in law23   and will adopt rules of law most persuasive  in
light of reason, precedent, and policy.24
     B.   Bickfords IDEA Claims
          1.   Jurisdiction
          As  an  initial  matter,  Bickford  contends  that  the
superior  court  lacked jurisdiction to hear  her  administrative
appeal.   First, she argues that the superior courts jurisdiction
was  defective  because the Department of Education impermissibly
removed  her complaint from its primary jurisdiction by assigning
it  to an assistant attorney general, Dahl, who was not under the
supervision,  direction,  or  control  of  the  Commissioner   of
Education,  but  the  Attorney General.   Second,  Bickford  also
argues  that  the  superior  courts  jurisdiction  was  defective
because  she  never  exhausted  her administrative  remedies  and
          because no complaint investigator ever issued a final decision on
the merits of her complaint.
          We  disagree.   First, there is no merit  to  Bickfords
primary jurisdiction argument.  At base, Bickford appears  to  be
arguing  that  the Department of Education should not  have  been
allowed  to involve lawyers from the attorney generals office  in
the  resolution  of  her  complaint; that  assertion  is  plainly
incorrect.   Second,  Bickfords  exhaustion  argument   is   also
unpersuasive.  Bickford appealed a final agency determination  to
the  superior  court.   Once  the  Department  of  Education  had
completed   its   investigation   of   Bickfords   administrative
complaint, no additional administrative procedures were available
to  her.  The superior court was therefore properly positioned to
hear her appeal.25
          2.    Challenges  to  rejection of  Bickfords  original
          The  core  of  Bickfords appeal is that the  department
violated  the  IDEA by returning her original  complaint  to  her
without  considering  its  merits.  The  department  argues  that
Bickfords  original complaint was too ambiguous to  even  trigger
the  IDEA  and  it  contends  that its  ambiguity  warranted  the
departments request for clarification.
          As  already stated, Bickfords administrative  complaint
was   assigned   to  investigator  Barats.   As   part   of   her
investigation,   Barats  conducted  interviews   with   Bickford,
Assistant  Attorney General Dahl, three members of the Department
of  Education,  two special education officers  employed  by  the
Anchorage School District, an attorney, another parent  named  in
the  complaint, and a secretary of the State Board of  Education.
She  also reviewed the documents and correspondence described  in
our  facts  and  proceedings section, state court rules,  federal
regulations, and the departments complaint-intake form.
          Baratss   decision   considered   six   specific   IDEA
allegations Bickford  raised in connection with the rejection  of
her  original  complaint  and found that  the  record  failed  to
support  any of these claims.  The Commissioner of the Department
of Education upheld this determination.  We must consider whether
the law and the record support Baratss decision.
          First,  Barats  addressed the contention  that  no  due
process hearing was completed within forty-five days of Bickfords
written  request.   Barats found that no violation  had  occurred
both  because  (a)  the  Anchorage School District  attempted  to
conduct a due process hearing but Bickford advised it that she no
longer  wanted the hearing; and (b) the department  was  not  the
proper  party  from  which  to request  a  due  process  hearing.
Regarding the school districts efforts, the record confirms  that
the  district did indeed attempt to conduct a due process hearing
and  that  Bickford  in fact did tell the district  that  she  no
longer  wanted  a  hearing.   As to the  departments  failure  to
conduct  a due process hearing, Bickford fails to establish  that
it had a legal obligation to do so.
          Federal   law   leaves  states  free  to   enact   laws
determining  whether due process hearings shall be  conducted  by
the State educational agency or by the local educational agency.26
          Alaska state law squarely assigns the duty to local school
districts by recognizing that there are only two parties to a due
process  hearing  school districts and parents  and by specifying
that a hearing may be requested by serving the opposing party: in
other  words, parents requesting due process hearings  must  make
the request to the district.27
          The   second  allegation  Barats  considered   involved
Bickfords contention that her original complaint had incorporated
a  complaint for administrative investigation that the department
failed  to  decide within sixty days of its filing, as  the  IDEA
required.28  Barats noted that federal regulations allow states to
delay  resolution of identical issues raised in a complaint while
those  same  issues  are pending in a due process  hearing29  and
concluded that it was proper for the department to take no action
on  Bickfords  complaint, which seemed  to  be  requesting  both,
pending  clarification  that Bickford  was  not  pursuing  a  due
process  hearing  or  notification  that  her  hearing  had  been
completed. We find no error in this determination.
          Barats next considered Bickfords contention that,  [i]n
spite  of  numerous calls, Bickford was the only  parent  of  the
eight  parents  her original complaint listed as  plaintiffs  who
received  correspondence from the department about the complaint.
Barats  concluded that no violation of law occurred, both because
(a)  Bickford was the only party who signed the complaint and (b)
the complaint had not been properly served on the department.  We
agree with the first rationale and need not consider the second.
          In her original complaint Bickford failed to make clear
whether  she meant to file a formal civil court claim, a  request
for an IDEA due process hearing, an administrative complaint,  or
some  combination of the three.  Since no other plaintiff  signed
the  original complaint and Bickford would have lacked  authority
to assert or represent the interests of other parents in either a
court  case  or  a  formal  due  process  hearing,  it  was   not
unreasonable  for  the state to communicate  only  with  Bickford
until  she clarified her intentions and made suitable changes  to
her  complaint.   Bickford cites no provision of law  that  would
have  required  the  department to  respond  or  send  copies  of
responses to each of the named plaintiffs, and we are aware of no
such provision.  Accordingly the record discloses no error of law
or fact on this point.
          Fourth,  Barats  considered  Bickfords  complaint  that
Dahls  letter  failed  to  address the  merits  of  her  original
complaint.   Barats  found that although the  original  complaint
might have been meant as an administrative complaint, it was also
reasonable  to  interpret the intent [of Bickfords complaint]  as
either a request for a Due Process Hearing or notification  of  a
legal action.  Barats concluded that, given this ambiguity,  Dahl
could  reasonably  determine  that  the  appropriateness  of  the
procedures  being followed . . . were the only merits that  could
be addressed in that early stage.
          Barats did find, however, that Dahls letter to Bickford
was  misleading to the extent that it directed her to  amend  her
complaint  to include only herself and her child if she  intended
it  as  a complaint for administrative investigation under 4  AAC
          52.500. Barats found the instruction mistaken as a matter of law
because  unlike requests for due process hearings, administrative
complaints  under  4  AAC 52.500 need not  be  restricted  to  an
individual  child.   Barats nevertheless  concluded  that,  while
misleading,  this  error does not constitute a violation  of  the
law.   We  need  not decide the point: considering the  remaining
uncertainties  in  Bickfords  original  complaint  and  Bickfords
December  7  letter notifying the department that the  plaintiffs
would  be  pursuing  their  case in  federal  court,  we  see  no
reasonable  likelihood that Dahls misstatement on this relatively
minor  point  had  any  prejudicial  effect.   Accordingly,  even
assuming  that  a  misstatement of the  law  might  amount  to  a
violation  of the IDEA under some circumstances, any  error  here
was plainly harmless.
          As  we  have  already  determined  above  in  upholding
Baratss ruling on Bickfords second allegation, Dahls decision  to
call  for  clarification instead of attempting to guess Bickfords
intent  was  reasonable  under the  circumstances  in  all  other
          The   fifth  point  of  error  Barats  considered   was
Bickfords  assertion that Dahl violated the IDEA  by  failing  to
reply  to the parents December 7 letter, which responded to Dahls
letter   to   Bickford   and  answered  his   questions   seeking
clarification of the original complaints intent.  Barats found as
an  initial matter that [t]here are no requirements in [the] IDEA
regarding  such a letter, so Dahls failure to respond  could  not
have amounted to a violation of the law.
          More  important, Barats ruled that [s]ince that  letter
expressed the complainants[] intent to file in District Court and
did not request additional action by the State . . . there was no
reason  for  a  response  at that time.   The  latter  ruling  is
dispositive  here:  the December 7 letter unequivocally  notified
Dahl  and the department that Bickford would be filing an  action
in  federal court, would not be filing an amended complaint,  and
was not requesting the state to act on her original complaint  as
clarified in the December 7 letter.  In short, the letter left no
door open and no reason to respond.
          The  sixth allegation Barats considered was whether the
department   had   established  appropriate   written   policies,
practices, and procedures to guide Bickford in attempting to file
and  pursue  her original complaint.  Investigator  Barats  found
that  the  Department  of  Education  had  issued  a  Notice   of
Procedural  Safeguards to parents that met at least  the  minimum
requirements  of the law and also indicate[d] the department  and
address to which a complaint should be submitted.  She found that
Bickford  had  been given a copy of this document and  had  ample
time   to   re-file   her  complaint  in  accordance   with   its
instructions.   Bickford  has not challenged  these  findings  on
appeal,  and we see no obvious error in them.  Assistant Attorney
General  Dahls  effort  to  point  out  the  original  complaints
ambiguities and to obtain a clarified complaint appears to us  to
have  been a reasonable attempt to provide precisely the guidance
that  Bickford claims she lacked; and her own abrupt  refusal  to
submit   an  amended  complaint  leaves  no  basis  for  claiming
prejudice from lack of earlier guidance.
     C.   ADA and Section 504
          Bickford next claims that the state violated complaint-
resolution  procedures  of the ADA and section 504  by  returning
her  original  complaint  without  addressing  its  merits.   She
further argues that the ADA and section 504 claims set out in her
original  complaint  should be rejoined to the  IDEA  claims  and
remanded to [the] superior court for a ruling on the merits.
          The  department responds that Bickfords ADA and section
504  claims  are  not part of this appeal.  It  also  notes  that
Bickfords  points on appeal to the superior court focused  solely
on  IDEA claims.  Moreover, the department notes that even if  we
did  consider Bickfords ADA and section 504 claims, we would have
to  reject them because only the Anchorage School District  could
consider them in the first instance.
          We  agree  that  these claims have  not  properly  been
preserved.   Bickford failed to raise these claims in her  second
complaint.   At  the investigation stage before  the  department,
Bickford  expressly  agreed that Barats  would  investigate  only
whether   the  department  had  complied  with  IDEA  procedures.
Neither  the  department nor the superior court had  occasion  to
address  them.   And as the superior court correctly  determined,
Bickford  could not properly resurrect her original complaint  in
her   administrative appeal to the superior court seeking  review
only  of  the  departments  dismissal of  her  second  complaint.
Bickfords ADA and section 504 claims are not properly a  part  of
this appeal.
     D.   Due Process
          Finally,  Bickford also argues that the states response
to  her  first complaint denied her procedural due process.   She
argues  that she should have been allowed to amend [her]  request
for  disparate remedies, that the department never  provided  her
with the opportunity to correct errors, that it provided her with
an  inadequate description of her procedural rights, and that the
departments informal complaint procedures and formal due  process
hearing  procedures are confusing optional avenues.  She suggests
that each of these actions (or omissions) violates the three-part
Mathews  v. Eldridge30 balancing test we have adopted  to  assess
whether administrative actions violate due process.31
          The  department argues that Bickford received the  full
process  to which she was entitled.  It argues that Bickford  was
entitled  only  to a guarantee that the Department  of  Education
would  take a hard look at her complaint, citing Laidlaw Transit,
Inc.  v.  Anchorage School District.32  Moreover, the  department
argues,  the  superior court actually provided Bickford  with  an
unusual  amount  of  process in this case  by  allowing  her  the
opportunity  to  create  a  record  by  examining  witnesses  and
introducing documents.
          We decline to address these arguments because Bickfords
due process claims are also inappropriately raised at this point.
Bickford did not raise these arguments before the superior  court
and they are therefore beyond the scope of her appeal.
          For  these  reasons, we AFFIRM the superior courts  and
          the departments decisions to dismiss Bickfords complaint.
     1    See generally 20 U.S.C.  1400-1482 (2005) (establishing
funding  structure  for  state  special  education  programs  and
providing  for private enforcement through various administrative
procedures  such  as  cause  of action  in  participating  states
through  due  process  hearings and  administrative  complaints).
Alaska provides for IDEA due process hearings in AS 14.30.193 and
4 AAC 52.550.

     2    20 U.S.C.  1411(a)(1).

     3    20 U.S.C.  1415(f)(1)(A) provides:

          Whenever a complaint has been received  under
          subsection   (b)(6)  [involving  any   matter
          relating  to  the identification, evaluation,
          or  educational placement of a child  or  the
          provision   of  a  free  appropriate   public
          education  to  a  child]  or  (k)  [involving
          placement   in  an  alternative   educational
          setting] of this section, the parents or  the
          local  education  agency  involved  in   such
          complaint  shall have an opportunity  for  an
          impartial due process hearing, which shall be
          conducted by the State educational agency  or
          by   the   local   educational   agency,   as
          determined  by  State law  or  by  the  State
          educational agency.
     4    Id.  1415(h).

     5    20 U.S.C.  1415(f)(1)(B)(ii) (if local education agency
has  not  remedied parents complaint within 30  days  parent  may
request  due  process hearing); 34 C.F.R.  300.510(b)(1)-(2)  (if
agency  has  not  resolved parent complaint  within  30  days  of
receiving complaint a due process hearing may occur and the  time
line   for   issuing   a  final  decision  begins);   34   C.F.R.
  300.515(a)(1)-(2)  (agency  must  submit  written  decision  to
parties within 45 days of end of 30-day period).

     6    20 U.S.C.  1415(f)(1)(A).

     7     AS 14.30.193(a) provides that [a] school district or a
parent  of  a  child with a disability may request a due  process
hearing and that [a] request is made by providing written  notice
to the other party to the hearing. (Emphasis added.)

     8     34 C.F.R.  300.660-.662 (1998) (current version at  34
C.F.R.   300.151-.153 (2006)).  Unlike the due  process  hearing,
which  is  expressly provided for by statute, the  administrative
complaint is established only in the code of federal regulations.
See  Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1026  (9th
Cir.   2000).    Alaska   provides  for   complaints   requesting
administrative hearings in 4 AAC 52.500.

     9    See 34 C.F.R.  300.661(a)(4) (1998) (current version at
34 C.F.R.  300.152(a)(5) (2006)).

     10     34  C.F.R.  300.661(a) (1998) (current version at  34
C.F.R.  300.152(b)(2)(i)-(iii) (2006)).

     11    20 U.S.C.  1412, 1414.

     12    29 U.S.C.  794 (2005).

     13    42 U.S.C.  12101-12213 (2005).

     14    42 U.S.C.  1983 (2005).

     15    In Alaska, IDEA due process hearings are governed by 20
U.S.C.  1415(f); AS 14.30.193; and 4 AAC 52.550.

     16     In  addition,  the  district evidently  thought  that
Bickford  might have meant to pursue an administrative  complaint
under  the IDEA.  In September 1998, based on a letter and  other
materials sent by Bickford in August 1998, the district had asked
the  Department of Education to undertake a general review of its
testing procedures for compliance with state and federal law.  It
appears that the department undertook such a review.

     17    In Alaska, IDEA administrative complaints are governed
by  34  C.F.R.  300.660-.662 (1998) (current version at 34 C.F.R.
 300.151-.153 (2006)) and 4 AAC 52.500.

     18    See Bickford v. Anchorage Sch. Dist., No. CV-98-00408-
HRH (D. Alaska Feb. 3, 1999) (dismissing case without prejudice),
affd   by  208  F.2d  220  (9th  Cir.  2000)  (unpublished  table
decision), cert. denied, 531 U.S. 876 (2000).

     19    See 4 AAC 52.500.

     20    Collins v. Arctic Builders, Inc., 31 P.3d 1286, 1288-89
(Alaska 2001).

     21     Phillip Weidner & Assocs., Inc. v. Hibdon,  989  P.2d
727,  730  (Alaska  1999)  (quoting Grove  v.  Alaska  Constr.  &
Erectors, 948 P.2d 454, 456 (Alaska 1997)).

     22    State, Dept of Pub. Safety v. Shakespeare, 4 P.3d 322,
324 (Alaska 2000);  Phillip Weidner & Assocs., 989 P.2d at 730.

     23    Shakespeare, 4 P.3d at 324 .

     24    Phillip Weidner & Assocs., 989 P.2d at 730.

     25    See Alaska R. App. P. 602(a)(2).

     26    20 U.S.C.  1415(f)(1)(A).

     27    AS 14.30.193(a) provides that [a] school district or a
parent  of  a  child with a disability may request a due  process
hearing and that [a] request is made by providing written  notice
to the other party to the hearing.  (Emphasis added.)

     28     See 34 C.F.R.  300.661 (1998) (current version at  34
C.F.R.  300.152 (2006)); see also 4 AAC 52.500(c)(6).

     29     See 34 C.F.R.  300.661 (1998) (current version at  34
C.F.R.   300.152  (2006)); see also 57 Fed. Reg.  44,794,  44,851
(Sept. 29, 1992).

     30    Mathews v. Eldridge, 424 U.S. 319 (1976).

     31     See,  e.g.,  State, Dept of Health & Soc.  Servs.  v.
Valley Hosp. Assn, 116 P.3d 580, 583 (Alaska 2005).

     32    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1025 (Alaska 2005).

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