California OAH special education order · January 2, 2013
Order Granting Motion to Amend Complaint
OAH Case No. 2012100380, 2012080113 · ALJ Timothy L. Newlove
OAH granted Student's request to amend the due process complaint over the District's objection, because it was filed more than five days before hearing, and reset all timelines.
This case went to decision
Student v. El Centro Elementary School District (consolidated): El Centro Elementary must provide 15 hours of compensatory occupational therapy; its special day class offers are upheld. (2013)
Summary
Five business days before a consolidated hearing set for January 7, 2013, Student filed a proposed amended due process complaint. The El Centro Elementary School District opposed, complaining that amendment would delay the hearing. OAH granted the request because the IDEA lets the hearing officer allow an amendment any time more than five days before the hearing. The amended complaint was deemed filed on the date of the order, all timelines were reset, and OAH said it would issue a new scheduling order.
Why it matters
A district's objection that amendment will delay the hearing does not block a timely amendment. A request made more than five days before hearing can be granted, but the amendment restarts the timelines and pushes back the hearing dates.
Key authority cited
- 20 U.S.C. § 1415(c)(2)(E)(i)
- 20 U.S.C. § 1415(c)(2)(E)(ii)
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:
EL CENTRO ELEMENTARY SCHOOL OAH CASE NOs. 2012100380 and
DISTRICT, 2012080113
v. ORDER GRANTING MOTION TO
AMEND COMPLAINT
PARENTS ON BEHALF OF STUDENT.
On October 15, the Office of Administrative Hearings (OAH) issued an order consolidating case numbers 2012100380 (District Complaint) and 2012080113 (Student Complaint) in this matter. Currently pending in the consolidated cases is a due process hearing set for January 7 – 10 and 14, 15, 2013.
On December 28, 2012, Student, through counsel, filed with OAH a proposed Amended Due Process Complaint in case number 2012080113. OAH will treat this filing as a request to file an amended pleading in the matter. On December 31, 2012, counsel for the El Centro Elementary School District filed with OAH an opposition to the request, complaining about a delay in the hearing of the consolidated matters.
Despite the District’s objection, an amended complaint in a special education administrative due process proceeding may be filed when either (a) the other party consents in writing and is given the opportunity to resolve the complaint through a resolution session, or (b) the hearing officer grants permission, provided the hearing officer may grant such permission at any time more than five (5) days prior to the due process hearing. (20 U.S.C. § 1415(c)(2)(E)(i).) The filing of an amended complaint restarts the applicable timelines for the due process hearing. (20 U.S.C. § 1415(c)(2)(E)(ii).)
Here, the motion to amend is timely and is granted. The Amended Due Process Complaint in case number 2012080113 shall be deemed filed on the date of this order. All applicable timelines shall be reset as of the date of this order. OAH will issue a scheduling order in this consolidated matter with the new dates.
IT IS SO ORDERED.
Dated: January 02, 2013 /s/
TIMOTHY L . NEWLOVE
Presiding Administrative Law Judge Office of Administrative Hearings