Order of Determination of Sufficiency of Due Process Complaint

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENT ON BEHALF OF STUDENT,

v.

CAPISTRANO UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2020080861

ORDER OF DETERMINATION OF SUFFICIENCY OF DUE

PROCESS COMPLAINT

SEPTEMBER 01, 2020

On August 31, 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 Capistrano Unified School District. On September 1, 2020, Capistrano 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.)

On September 28, 2017, the attorney general issued an opinion letter which considered whether the IDEA, the implementing regulations, and/or the California Education Code authorized a party to special education due process proceedings to be represented by a person that was not an active member of the California State Bar. The attorney general’s opinion concluded that these laws did not authorize parties to a special education due process hearing to be represented by a person that is not an active member of the California State Bar in due process hearings. (100 Ops. Cal. Atty.

Gen. 19 (2017).)

DISCUSSION

Student’s complaint is a form pleading that alleges two insufficiently pled claims.

First, Student alleges that Capistrano failed to implement Student’s Individualized Education Program, called IEP, since March of 2020. Second, Student alleges that Capistrano did not provide Parents with notice of a change in Student’s IEP. As pled, the issues are general and not specific to Student, as the complaint fails to identify the IEP or services that are in dispute. The complaint is overly vague and fails to provide Capistrano with the required problem description and the facts relating to the problem.

Student’s complaint is therefore insufficiently pled.

Attorneys Peter G. Albert and Patrick Donohue filed the complaint on behalf of Student. Neither Attorney Albert nor Attorney Donohue appear to be authorized to practice law in the State of California, in violation of the above authority. Attorneys Albert and Donahue have been previously informed by OAH that this conduct violates California law. (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].)

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, except the September 21, 2020 Order to Show Cause

Hearing, in this matter are vacated.

IT IS SO ORDERED.

Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings