California OAH special education order · September 2, 2020
Order of Determination of Insufficiency of Due Process Complaint
OAH Case No. 2020080855 · ALJ Paul H. Kamoroff
OAH found Student's complaint insufficient because it was a generic form pleading that did not identify Student's IEP or the services in dispute. It required any amended complaint to come from California-licensed counsel or Parent.
Summary
Western Placer filed a notice of insufficiency against Student's complaint, which alleged the district had failed to implement Student's IEP since March 2020, changed the IEP without notice, and materially altered it. OAH found the complaint was a form pleading identical to others filed by the same attorneys that OAH had already found insufficient. It did not identify the IEP or services in dispute, so it could have been about any child in any district. OAH also found that neither attorney appeared to be licensed in California, and it gave Student 14 days to file an amended complaint through a California-licensed attorney or through Parent as a self-represented litigant.
Why it matters
A due process complaint must describe the specific child's IEP, services, and problems. Generic template complaints, such as mass COVID-era filings, will be rejected. Families should also make sure their attorney is licensed to practice in California.
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)
- Sen. Rep. No. 108-185
- 71 FR 46540-46541, 46699
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.
WESTERN PLACER UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020080855
ORDER OF DETERMINATION OF INSUFFICIENCY OF
DUE PROCESS COMPLAINT
SEPTEMBER 02, 2020
On August 28, 2020, Parent on behalf of Student filed a Due Process Hearing Request, called a complaint, with the Office of Administrative Hearings, referred to as OAH, naming Western Place Unified School District. On September 2, 2020, Western Placer Unified School District 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 is an improper form pleading that insufficiently pled claims.
Student primarily alleges that Western Placer failed to implement Student’s Individualized Education Program, called IEP, since March of 2020, failed to provide Parent with notice of a change in Student’s IEP, and materially changed the IEP. The issues are general and not specific to Student, as the complaint fails to identify the IEP or services that are in dispute. Student’s allegations are overly vague and fails to provide sufficient information for Western Placer to understand the issues forming the basis of the complaint.
The complaint is identical to complaints for other students filed by Attorneys Peter G. Albert and Patrick Donohue, which OAH deemed insufficient. (See Student v.
Poway Unified School District (August 25, 2020) OAH Case No. 2020080526 [Order Finding Student’s Due Process Complaint Insufficient]; Student v. Saddleback Valley Unified School District (August 27, 2020) OAH Case No. 2020080561 [Order Finding Student’s Due Process Complaint Insufficient].) Student’s attorneys overlook that each child’s educational program is unique and a complaint alleging a denial of a free appropriate public education must be specific to Student. Here, the complaint could be for any child in any school district, thereby making it impossible for Western Placer to prepare for a resolution session or mediation for this matter. For these reasons, Student’s complaint is insufficient.
Attorneys Peter G. Albert and Patrick Donohue filed the complaint on behalf of Student. Neither attorney appears to be authorized to practice law in the State of California, in violation of the above authority. Consequently, Attorneys Albert and Donohue were not authorized to file the complaint on behalf of Student. Accordingly, Student shall file the amended complaint through an attorney licensed to practice law in California or through Parent as a self-represented litigant.
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 by an attorney licensed to
practice law in California or through Parent as a self-represented litigant, the complaint will be dismissed.
5. All dates previously set in this matter, with the exception of the September 14,
2020 Order to Show Cause Hearing, are vacated.
IT IS SO ORDERED.
Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings