California OAH special education order · September 8, 2020
Order Finding Student's Complaint Insufficient
OAH Case No. 2020090071 · ALJ Alexa Hohensee
OAH found Student's form complaint insufficient because it could apply to any child. It also ruled the filing attorneys were not authorized to practice law in California.
Summary
Lincoln challenged the sufficiency of Student's complaint, which alleged that Lincoln failed to implement Student's IEP since March 2020, failed to give Parent notice of a change, and materially changed the IEP. OAH found the complaint was a generic form pleading, identical to others filed by the same attorneys, that did not identify the IEP or services in dispute. OAH also found that neither filing attorney appeared to be authorized to practice law in California. Student was given 14 days to amend through a California-licensed attorney or through Parent as a self-represented litigant, or the case will be dismissed.
Why it matters
A due process complaint must describe this particular child's IEP, services, and problems, so boilerplate complaints will not survive a sufficiency challenge. Parents should also make sure anyone filing for them is licensed to practice law 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)
- 100 Ops. Cal. Atty. Gen. 19 (2017)
- Ed. Code, § 56505
- Sen. Rep. No. 108-185
People named in the order
- Peter G. Albert, Student's attorney
- Patrick Donohue, Student's attorney
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.
LINCOLN UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020090071
ORDER FINDING STUDENT’S COMPLAINT INSUFFICIENT
SEPTEMBER 8, 2020
On August 31, 2020, Student filed a due process hearing request, called a complaint, with the Office of Administrative Hearings, referred to as OAH, naming Lincoln Unified School District. On September 4, 2020, Lincoln 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 must include the name of the child, the address of the residence of the child, and the name of the school the child is attending.
The complaint is sufficient if it contains this information, and additionally:
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 Individuals with Disabilities Education Act, 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 an improper form pleading that insufficiently pled claims.
Student primarily alleges that Lincoln Unified School District 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 Lincoln 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 Lincoln 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.
A parent without an attorney may request that OAH provide a mediator to assist the parent in identifying the issues and proposed resolutions that must be included in a complaint. (Ed. Code, § 56505.) Parents are encouraged to contact OAH for assistance if they intend to amend their due process hearing request without an attorney.
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 by Parent as a self-represented litigant, the complaint will be dismissed.
5. All dates previously set in this matter, with the exception of the October 2,
2020 Order to Show Cause Hearing, are vacated.
Alexa Hohensee Administrative Law Judge Office of Administrative Hearings