California OAH special education order · July 8, 2013

Order Finding Jurisdiction to Adjudicate District Issues G) and H) and Denying Student's Motion to Dismiss

OAH Case No. 2012100242, 2012100291 · ALJ Troy K. Taira

OAH kept District's claims about compliance with a prior IEE order. It ruled that it may decide whether the District's and Parent's compliance with that order affected whether Student received a FAPE.

Denied; jurisdiction found Jurisdiction

This case went to decision

Student v. Fresno Unified School District (consolidated): Fresno Unified denied a 22-year-old student a FAPE from October 2010 onward; ALJ orders assessments before deciding compensatory education. (2014)

This case went to decision

Student v. Fresno Unified School District (consolidated): Fresno Unified must fund 55 months of individualized compensatory education through EvoLibri for a 22-year-old denied FAPE for 39 months. (2014)

Summary

At the prehearing conference, the ALJ asked whether OAH had jurisdiction over District issues g) and h). Those issues asked whether the District made reasonable efforts to conduct an IEE ordered in an earlier OAH case, and whether Parent refused to make Student available for it. Student moved to dismiss both issues for lack of jurisdiction. OAH denied the motion. It reasoned that the District was not asking OAH to enforce its own prior order, which Wyner places outside OAH's jurisdiction. Instead, the District was asking how compliance or noncompliance with that order bears on whether it provided a FAPE, which OAH may decide under Pedraza.

Why it matters

OAH cannot enforce its own prior orders; under Wyner, that goes through the CDE compliance complaint process. However, a district may still raise a parent's failure to make a child available for an ordered assessment as a defense on whether it provided a FAPE.

Key authority cited

  • 20 U.S.C. § 1415(b)(6)
  • Ed. Code, § 56501, subd. (a)
  • Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026
  • Pedraza v. Alameda Unified Sch. Dist. (N.D. Cal. 2007) 2007 U.S. Dist. LEXIS 26541
  • Cal. Code Regs., tit. 5, § 4600 et seq.

People named in the order

  • Hohensee, ALJ who issued the prior order in OAH case 2012010705

Topics

jurisdiction independent educational evaluation compliance with prior order parent cooperation fape

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 Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012100242

v.

FRESNO UNIFIED SCHOOL DISTRICT,

FRESNO UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2012100291

v.

PARENT ON BEHALF OF STUDENT. ORDER FINDING JURISDICTION TO

ADJUDICATE DISTRICT ISSUES G)

AND H) AND DENYING STUDENT’S

MOTION TO DISMISS

Student filed a request for due process hearing (complaint) on October 3, 2012, in Office of Administrative Hearings (OAH) case number 2012100242, naming Fresno Unified School District (District). On October 5, 2012, District filed a complaint in OAH case number 2012100291, naming Student. On October 30, 2012, OAH consolidated the two cases. The due process hearing is currently scheduled for August 26 through 29, 2013.

On June 7, 2013, a prehearing conference (PHC) was convened by the undersigned Administrative Law Judge (ALJ) to discuss the hearing. Student’s issues for hearing were labeled issues a) through d). District’s issues for hearing were labeled issues e) through i).

District’s issues are as follows:

e) May District conduct Student’s triennial assessment in all areas of need identified in the October 25, 2011 assessment plan without parental consent? f) May District discontinue Student’s specialized academic instruction, identified in the October 25, 2011 IEP, and provided as a regional occupation program (ROP) class at Duncan Polytechnic High School, because District has determined Student receives no educational benefit? g) Did District comply with ALJ Hohensee’s order issued in OAH case number 2012010705 by exercising reasonable efforts to perform an independent educational evaluation (IEE) of Student? h) Did Parent fail to comply with ALJ Hohensee’s order issued in OAH case number 2012010705 by refusing to make Student reasonably available for an IEE? i) Did District’s October 25, 2011 IEP and September 26, 2012 prior written notice offer Student a FAPE in the LRE and, if so, may the offer be implemented without parental consent? During the PHC, while reviewing the parties’ issues, the undersigned ALJ noted that District issues g) and h) seemed to request compliance determinations that are outside OAH’s jurisdiction. The undersigned ordered District to submit a brief to explain why it believes OAH has jurisdiction to determine issues g) and h). 1 District timely filed its brief on June 12, 2013. Student also filed a brief in opposition requesting that OAH dismiss District issues g) and h) for lack of jurisdiction. 2

APPLICABLE LAW

The purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et. seq.) is to “ensure that all children with disabilities have available to them a free appropriate public education” (FAPE), and to protect the rights of those children and their parents. (20 U.S.C. § 1400(d)(1)(A), (B), and (C); see also Ed. Code, § 56000.) A party has the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a) [party has a right to present a complaint regarding matters involving proposal or refusal to initiate or change the identification, assessment, or educational placement of a child; the provision of a FAPE to a child; the refusal of a parent or guardian to consent to an assessment of a child;

or a disagreement between a parent or guardian and the public education agency as to the availability of a program appropriate for a child, including the question of financial responsibility].) The jurisdiction of OAH is limited to these matters. (Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029 [hereafter Wyner].)

In Wyner, during the course of a due process hearing, the parties reached a settlement agreement in which the district agreed to provide certain services. The hearing officer ordered the parties to abide by the terms of the agreement. Two years later, the student initiated another due process hearing, and raised, inter alia, six issues as to the school district’s alleged failure to comply with the earlier settlement agreement. The California 1 District raises five issues against Student in its complaint. Only two issues are the subject of this order and the remaining District issues e), f), and i), are not discussed.

Student’s issues a) through d) are also not subject of this order and are not discussed.

2 Student’s motion refers to these issues as Issues 3 and 4.

Special Education Hearing Office (SEHO), OAH’s predecessor in hearing IDEA due process cases, found that the issues pertaining to compliance with the earlier order were beyond its jurisdiction. This ruling was upheld on appeal. The Wyner court held that “the proper avenue to enforce SEHO orders” was the California Department of Education’s compliance complaint procedure (Cal. Code Regs., tit. 5, § 4600, et. seq.), and that “a subsequent due process hearing was not available to address . . . alleged noncompliance with the settlement agreement and SEHO order in a prior due process hearing.” (Wyner, supra, 223 F.3d at p.

1030.)

More recently, in Pedraza v. Alameda Unified Sch. Dist. (D. Cal. 2007) 2007 U.S.

Dist. LEXIS 26541 the United States District Court for the Northern District of California held that OAH has jurisdiction to adjudicate claims alleging denial of a FAPE as a result of a violation of a mediated settlement agreement, as opposed to “merely a breach” of the mediated settlement agreement that should be addressed by the California Department of Education’s compliance complaint procedure.

DISCUSSION

In the present matter, District issues g) and h) appear to request that OAH make a compliance determination to enforce its own order. Such a determination would be outside OAH jurisdiction. However, District asserts that that this is not the case. Instead, District is asking for a determination regarding the effect of District’s compliance and Parent’s non- compliance with a prior judicial order in order to determine whether District met its obligation to provide Student a FAPE. Specifically, District seeks a determination whether it and Parent complied with OAH’s judicial order and if District is relieved of its obligation to provide student a FAPE when Parent fails to make Student available for an ordered assessment. Pursuant to the authority discussed above, OAH does have jurisdiction to entertain District’s claims in issue g) and h) for purposes of determining whether District provided Student a FAPE.

ORDER

Student’s motion to dismiss District issues g) and h) is denied. The matter shall proceed as scheduled.

IT IS SO ORDERED.

Dated: July 8, 2013 /s/

TROY K. TAIRA

Administrative Law Judge Office of Administrative Hearings