California OAH special education order · February 26, 2013
Order Granting Motion to Consolidate
OAH Case No. 2013020661, 2012100261 · ALJ Margaret Broussard
OAH consolidated the dueling triennial assessment cases over District's objection, but refused to keep the earlier March hearing dates because District had not waived its resolution session in Student's new case.
This case went to decision
Student v. Poway Unified School District (consolidated): Poway Unified may give a fourth grader with autism the KABC-II cognitive test over parent objection; auditory processing claim denied. (2013)
Summary
Student asked OAH to consolidate District's earlier due process case with Student's newly filed case, both about the assessment plan for Student's triennial assessment, and to go to hearing on the earlier case's March 6-7, 2013 dates. District objected because it had not waived the resolution session in Student's case. OAH granted consolidation because the cases share common facts and law and keeping them separate risked inconsistent rulings. It denied Student's request to keep the March dates, because a hearing on Student's complaint cannot go forward until a resolution session is held or both sides waive it, so the consolidated case follows the later case's schedule.
Why it matters
A parent can waive the resolution session alone, but it is skipped only if both sides agree, so filing a related complaint and asking to fold it into an existing hearing date may push the whole hearing back. Parents should weigh that delay before consolidating.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
- 20 U.S.C. § 1415(f)(1)(B)(i)(I)
- 34 C.F.R. § 300.510
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013020661
v.
POWAY UNIFIED SCHOOL DISTRICT,
POWAY UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2012100261
v.
PARENT ON BEHALF OF STUDENT. ORDER GRANTING MOTION TO
CONSOLIDATE
On October 5, 2012, Poway Unified School District (District) filed a Request for Due Process Hearing in Office of Administrative Hearings (OAH) case number 2012100261 (First Case), naming Student.
On February 20, 2013, Student filed a Request for Due Process Hearing in OAH case number 2013020661 (Second Case), naming District.
On February 20, 2013, Student filed a Motion to Consolidate the First Case with the Second Case and to proceed to hearing on the dates assigned in the First Case, March 6-7, 2013.
On February 25, 2013, District filed an objection to consolidation on the grounds that consolidation of the cases using the dates from First Case would impede the District’s obligation to hold a resolution session. The District has not agreed to waive the resolution session in the Second Case. Further, the District also opposes any further continuances in the First Case.
APPLICABLE LAW
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].)
A local educational agency (LEA) is required to convene a meeting with the parents and the relevant members of the Individualized Education Program (IEP) team within 15 days of receiving notice of the Student’s complaint. (20 U.S.C. § 1415(f)(1)(B)(i)(I); 34 C.F.R. § 300.510(a)(1).) The resolution session need not be held if it is waived by both parties in writing or the parties agree to use mediation. (34 C.F.R. § 300.510(a)(3).) If the parents do not participate in the resolution session, and it has not been otherwise waived by the parties, a due process hearing shall not take place until a resolution session is held. (34 C.F.R. § 300.510(b)(3).) If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented, the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the complaint.
(34 C.F.R. §300.510(b)(4).)
DISCUSSION
In this case, the Student has requested consolidation of the First Case and the Second Case. The Student proposes to waive the resolution session in the Second Case and proceed to hearing on the consolidated matter on March 6-7, 2013, as previously scheduled in the First Case. The District is unwilling to waive the resolution session in the Second Case and opposes consolidation and continuance of the hearing in the First Case.
The First Case and Second Case involve a common question of law and fact regarding the specific areas of testing which should be given to student as part of his triennial assessment. Both cases concern a dispute over an assessment plan for student’s triennial assessment and have common facts. Without consolidation, there would be a danger of inconsistent rulings. Therefore, Student’s Motion to Consolidate is granted, as consolidation furthers judicial economy prevents inconsistent rulings.
However, the District correctly states that Student’s due process complaint may not proceed to hearing until either a resolution session has been held or mutually waived. The District has explicitly not agreed to waive the resolution session in the Second Case.
Therefore, Student’s request to proceed with the consolidated cases on the dates assigned in the First Case is denied and the consolidated case will proceed on the dates assigned in the Second Case to give the parties the opportunity to meet in a resolution session.
ORDER
1. Student’s Motion to Consolidate is granted.
2. All dates previously set in OAH Case number 2012100261 (First Case) are
vacated. The consolidated cases shall proceed on the dates scheduled in OAH Case number 2013020661 (Second Case) which are: mediation on March 26, 2013, a prehearing conference on April 8, 2013, at 1:30 p.m., and due process hearing on April 16, 2013, and continuing day-to-day. Mediation is voluntary and either party may cancel by giving proper notice to the parties and OAH.
3. The 45-day timeline for issuance of the decision in the consolidated cases shall
be based on the date of the filing of the complaint in OAH Case Number 2013020661 (Second Case).
Dated: February 26, 2013 /s/
MARGARET BROUSSARD
Administrative Law Judge Office of Administrative Hearings