California OAH special education order · May 20, 2013
Order Denying Request for Accommodation
OAH Case No. 2013010236 · ALJ Bob N. Varma
OAH denied without prejudice Student's request for a Certified Deaf Interpreter for Parent, on top of ASL interpreters, because the request did not adequately describe Parent's impairment or why the accommodation was needed.
This case went to decision
Student v. New Haven Unified School District: New Haven Unified prevails on all claims involving interpreters for a deaf parent, waived assessments, and IEP goals. (2013)
Summary
Less than two weeks before the continued hearing, Student asked OAH to provide a Certified Deaf Interpreter (CDI) for Parent, in addition to the certified ASL interpreters OAH had already secured. The request was supported by a declaration from Student's attorney, who said she had only just learned of the need. OAH found the request did not describe Parent's impairment or the need for a CDI, as California Rules of Court, rule 1.100 requires. OAH also noted that Parent had taken part in mediation, worked with counsel for months, and appeared on the first day of hearing without asking for a CDI. Student may resubmit the request with a sufficient description.
Why it matters
A disability accommodation request at OAH should include a clear statement of the impairment and why the specific accommodation is needed, and should be made early. Late, thinly supported requests can be denied, especially when the parent has already participated without the accommodation.
Key authority cited
- Cal. Rules of Court, rule 1.100
- 42 U.S.C. § 12132
- Cal. Code Regs., tit. 2, § 58.8
People named in the order
- Nicole Hodge Amey, 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, OAH CASE NO. 2013010236
v. ORDER DENYING REQUEST FOR
ACCOMMODATION
NEW HAVEN UNIFIED SCHOOL
DISTRICT.
On January 8, 2013, Student filed a request for due process hearing (complaint)
against the New Haven Unified School District (District). The Office of Administrative Hearings (OAH) set the matter for hearing on March 5, 2013. On February 15, 2013, at the request of the parties, OAH continued the matter to April 16, 2013.
On April 11, 2013, Student moved to amend his complaint. OAH denied Student’s request and the matter proceeded to hearing. However, on the first day of hearing, April 16, 2013, the matter was again continued and set for hearing to commence on May 29, 2013.
OAH has secured certified American Sign Language (ASL) interpreters for the hearing.
On May 16, 2013, Student filed a request for OAH to provide a Certified Deaf Interpreter (CDI), in addition to the ASL interpreters. Student’s request was accompanied by a sworn declaration from Student’s attorney, Nicole Hodge Amey. The request states that on May 16, 2013, for the first time in her representation of Student, Ms. Amey learned that Mother required a CDI. The request further states that Student’s advocate believes the matter should not proceed to hearing without a CDI. 1
APPLICABLE LAW AND DISCUSSION
OAH does not have regulations governing reasonable accommodation requests by parties to an administrative hearing before OAH. Therefore, OAH looks for guidance to applicable law found in the Rules of Court, federal and state law. It is the policy of the courts to ensure that persons with disabilities have equal and full access to the judicial system in accordance with the Americans with Disabilities Act (ADA). (Cal. Rules of Court, To the extent that Student’s request may be considered a motion to continue, OAH will withhold ruling on the continuance request for three business days, from filing of Student’s request, for District to respond.
rule 1.100.) The ADA provides that “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132.)
Any request for accommodation made on behalf of a party must include a “description of the accommodation sought, along with a statement of the impairment that necessitates the accommodation.” (Cal. Rules of Court, rule 1.100, subd. (c)(2); Cal. Code of Regs., tit. 2, § 58.8, subd. (d)(2).) The declaration by Ms. Amey, submitted on behalf of Mother, does not include a sufficient description of Mother’s impairment and the need for the requested accommodation. Without this, OAH is unable to determine whether the requested accommodation of a CDI, in addition to the ASL interpreters, is reasonably necessary to allow Mother access to the due process proceedings.
The facts in the procedural history of this matter further support the determination that insufficient information has been provided regarding Mother’s need for the requested accommodation. This matter was filed in January of 2013, therefore it can be assumed that Ms. Amey has communicated with Mother and prepared Mother for the hearing for at least five months. The parties participated in mediation on March 19, 2013, without a CDI and Student did not assert that Mother could not adequately participate in mediation due to the lack of a CDI. The parties appeared on April 16, 2013, on the first day of hearing, ready to proceed. Again, a CDI was not present and Student did not assert, at that time, that Mother could not access the proceedings without a CDI. Finally, Ms. Amey states that she only learned of the need for a CDI on May 16, 2013, through Mother’s advocate. In light of this history of Mother being able to participate in mediation, communicate with her attorney, prepare for hearing and appear on the first day of hearing without a request for a CDI, Student has failed to provide a sufficient description of Mother’s impairment and the need for the requested accommodation.
When an applicant fails to provide the necessary information concerning the applicant’s impairment, a court may require the applicant to submit additional information regarding the applicant’s impairment. (Cal. Rules of Court, rule 1.100, subd. (c)(2).) Here, OAH has the discretion to require that a sufficient description of Mother’s impairment and the need for further accommodation be submitted consistent with the rule. Furthermore, OAH may deny the request for accommodation if there has been a failure to satisfy the requirements of the rule, in this case, that a sufficient description of the disability be provided with the request for accommodation. (Cal. Rules of Court, rule 1.100, subd. (f)(1).)
Accordingly, at this time, OAH is denying the request for accommodation for Mother, specifically the request for a CDI in addition to the ASL interpreters, due to the insufficiency of the request. Student may resubmit the request with a sufficient description of Mother’s impairment such that OAH can determine whether the accommodation of a CDI, in addition to the ASL interpreters, is necessary.
ORDER
Student’s request for a CDI, in addition to ASL interpreters, as a reasonable accommodation for Mother is denied without prejudice.
Dated: May 20, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings