California OAH special education order · January 28, 2013
Order Denying Motion to Consolidate and Motion to Continue Student's Case
OAH Case No. 2013010764 · ALJ Clifford H. Woosley
OAH denied District's last-minute motion to consolidate its IEE case with Student's case and continue the hearing, because the cases raised different issues and the delay conflicted with IDEA timeliness.
Summary
District filed its own due process complaint six business days before the hearing in Student's case. The complaint sought to defend its assessments and deny Student's requests for independent educational evaluations (IEEs). With it, District moved to consolidate the two cases and continue Student's hearing, and Student opposed. OAH denied the motion. It found that District's case would add new facts and legal issues, such as the December 2012 assessments and IEP, that were not part of Student's case. It also noted that District had already obtained one continuance and waited until the eve of hearing, and that consolidating and continuing at that late date would be inconsistent with the IDEA's requirement to resolve due process in a timely way.
Why it matters
A district cannot use a late-filed complaint plus a consolidation request to push back a parent's scheduled hearing, especially after already getting a continuance. Parents who oppose on timing and differing issues can keep their hearing dates.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
People named in the order
- Paul H. Kamoroff, Administrative Law Judge who held the prehearing conference
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:
OAH CASE NO. 2013010764
POWAY UNIFIED SCHOOL DISTRICT,
ORDER DENYING MOTION TO
v. CONSOLIDATE AND MOTION TO
CONTINUE STUDENT’S CASE
PARENT ON BEHALF OF STUDENT.
On November 16, 2012, Parent on behalf of Student filed a Request for Due Process Hearing with the Office of Administrative Hearings (OAH) case number 2012110589 (First Case), naming Poway Unified School District (District). On November 20, 2012, OAH issued a scheduling order, setting the hearing in the First Case for December 20, 2012. On December 7, 2011, OAH granted District’s motion to continue, setting the hearing for February 4 through 7,
2013. Student and District filed PHC statements, which included lists of witnesses and exhibits.
Administrative Law Judge (ALJ) Paul H. Kamoroff held the PHC on the morning of January 23,
2013. District’s counsel mentioned during the PHC that the District was considering filing its
own due process complaint and would seek consolidation with the First Case. ALJ Kamoroff issued an order following the PHC, listing the issues for hearing and affirming the hearing dates.
On January 25, 2013, 1 District filed a Request for Due Process Hearing in OAH case number 2013010764 (Second Case), naming Student. With its complaint, District also filed a Motion to Consolidate the First Case with the Second Case and to continue the due process hearing dates set in Case Number 2012110589 (First Case). On January 25, 2013, Student filed an opposition to the motion to consolidate.
In the Second Case, District states that Student seeks independent educational evaluations (IEE’s), at District’s expense, in the areas of spelling, sensory processing, and written communication, including vocabulary. District states that Parent requested that District fund IEE’s at the December 10, 2012 IEP and, again, at a January 16, 2013 IEP. District allegedly provided Parent with prior written notice, denying the requests, on January 22 and 23, 2013.
District seeks an OAH finding that its triennial evaluation, which was presented at the November 2011 triennial team meeting, and supplemental assessments, which were considered at the December 2012 team meeting, were appropriate, and that Student is not be entitled to IEE’s, at public expense.
The District’s complaint and motion were faxed to OAH on January 24, 2013, after 5:00 p.m. Thus, they were deemed filed the next business day.
Student objects to the consolidation and continuance, asserting that the District was aware of Student’s requests for IEE’s no later than December 10, 2012, and that the late filing the Second Case was a means of delaying the hearing on the First Case, by seeking consolidation and continuance. Further, in order to assure that the hearing in the First Case is not delayed, Parent states that she notified the District that Student withdrew his request for IEE’s at District expense.
Consolidation Although no statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases, OAH will generally consolidate matters that involve: a common question of law and/or fact; the same parties; and when consolidation of the matters furthers the interests of judicial economy by saving time or preventing inconsistent rulings. (See Gov. Code, § 11507.3, subd. (a) [administrative proceedings may be consolidated if they involve a common question of law or fact]; Code of Civ. Proc., § 1048, subd. (a) [same applies to civil cases].)
The First Case will consider whether Student was denied a free appropriate public education (FAPE) for the 2011-12 school year and the 2012-13 school year (up to November 16, 2012). The District’s triennial evaluations of 2011 are likely to be addressed in Student’s case.
However, further assessments considered at the December 10, 2012, IEP, as well as the IEP itself, are not at issue in the First Case. Therefore, consolidation would add additional factual determinations and legal issues to the First Case.
Additionally, District obtained a continuance in the First Case on December 7, 2012, setting the hearing for February 4, 2013. Yet, District waited until six (6) business days before commencement of hearing to file the Second Case and to seek consolidation with, and continuance of, the First Case.
Student opposes any additional continuances of the First Case. Though some overlap of factual determinations may occur, consolidation is unwarranted, especially since District requests continuance. Consolidation and continuance of these two matters, at this late date, is inconsistent with the IDEA mandate of resolving due process in a timely and judicious manner.
ORDER
1. The District’s motion is denied.
2. All dates remain as presently scheduled.
Dated: January 28, 2013 /s/
CLIFFORD H. WOOSLEY
Administrative Law Judge Office of Administrative Hearings