OAH dismisses two cases based on Parent’s failure to participate in Early Resolution Sessions, and orders Student’s attorney to reimburse Twin Rivers Unified School District for $10,763.50 in legal fees incurred because of “bad faith tactics.”
In two recent orders from the Office of Administrative Hearings (“OAH”), dated April 27, 2023 and June 8, 2023 (April 27th – June 8th), OAH dismissed two OAH cases and ordered the attorney representing both students to reimburse the Twin Rivers Unified School District (“District”), in the amounts of $5,868 and $4,895.50, respectively, for a total, $10,763.50, as a result of “bad faith” tactics in relation to their failure to participate in the early resolution session (“ERS”) process.
When a due process complaint is filed against a school district, the IDEA requires the parent to participate in an ERS with the district, to discuss the complaint and the underlying facts behind the complaint, unless both parties agree to waive the ERS. (20 U.S.C. §1415(f)(1)(B)(i)(I).) Failure to participate in the ERS can lead to dismissal of the complaint. (Ed. Code, §56501.5(e)(1)).
In both cases, OAH found that the students’ non-attorney advocate, an employee of the law firm representing both students, failed to participate in the ERS process, when he “refused to respond to clarifying questions about, or discuss, the facts forming the basis of the complaint.” Accordingly, OAH ordered Parent and any agent of the law firm representing the students to participate in a second ERS with the District. At the students’ second ERS, OAH found that the students’ advocate “again refused to discuss the substantive facts forming the basis of the complaint.”
Based upon Parent’s failure to participate in the ERS process the District filed motions to dismiss both complaints. In response to these filings, OAH granted the District’s motions to dismiss in both cases, holding that Parent refused to participate in the ERS, violating the IDEA. While the students’ advocate filed a declaration asserting that Parent participated in the ERS process, OAH found that the declaration was “unsupported, unreasonable, and unpersuasive to excuse…non-participation in a resolution session.”
In addition to granting the District’s motions to dismiss, OAH granted both of the District’s motions for sanctions against the advocate’s supervising attorney, and her law firm. In total, OAH ordered that the students’ legal counsel reimburse the District in the amount of $10,763.50 for legal fees the District incurred in defending itself against the firm’s “bad faith tactics.” OAH specifically noted that “several prior OAH orders of cost shifting, or sanctions…, against [the] firm have failed to deter them from violating special education statutes, regulations…” and further ordered that the firm “must act with due diligence to comply with future OAH orders.”
The orders from OAH highlight the importance of the ERS process, which promotes alternative dispute resolution, and demonstrate how refusal to comply with these requirements can lead to the dismissal of a case, and possibly, sanctions for bad faith tactics.
If you have any questions about this blog post, ERS requirements, or similar motions, please feel free to contact any of the attorneys at GPV. You can also follow us on Facebook, LinkedIn, or Instagram. GPV attorneys Marcy Gutierrez, Tilman Heyer, and John Louis Chiappe were proud to assist Twin Rivers Unified School District in these matters.
This post does not constitute legal advice. Each case must be analyzed based on the specific facts of that case. GPV does not guarantee or predict the same or similar results in all cases. Please contact your legal counsel if you have questions about a particular fact pattern.