California OAH special education order · May 20, 2013
Order Granting Request for Continuance and Setting Prehearing Conference and Due Process Hearing
OAH Case No. 2013040960 · ALJ Timothy L. Newlove
OAH granted only a short continuance, not Student's requested three-month delay, because the District has a right to a speedy resolution and placement should be decided before the next school year.
This case went to decision
Student v. Tustin Unified School District (consolidated): Tustin Unified may implement IEP moving medically fragile student from county program to Currie Middle School; Student's claims denied. (2013)
Summary
Student asked OAH to continue the hearing in the District's case for about three months, to late August 2013. Student gave several reasons, including her attorney's medical needs and travel plans. The District agreed to a short continuance but opposed any delay of more than 90 days. OAH granted only a short continuance and reset the prehearing conference to June 10, 2013 and the hearing to June 17, 2013, because the District has a right to a speedy resolution and all parties benefit from deciding Student's placement before the new school year.
Why it matters
Even when good cause exists, such as counsel's medical needs, OAH may grant a much shorter continuance than requested when a decision on placement is needed before the school year starts. Parents should plan for continuances that are shorter than they ask for.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code § 56502, subd. (f)
- Ed. Code § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
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:
TUSTIN UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2013040960
v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
PARENTS ON BEHALF OF STUDENT. PREHEARING CONFERENCE AND
DUE PROCESS HEARING
On May 14, 2013, Student, through counsel, filed with the Office of Administrative Hearings (OAH) a request to continue and reset the currently scheduled hearing dates in the case. On May 20, 2013, the Tustin Unified School District, through counsel, filed an opposition to the request.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance;
and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is: Granted. All dates are vacated. Here, Student has requested a continuance of the due process hearing for three months, until late August 2013. Student provides different reasons for this request, including the medical needs and travelling plans of her attorney. District counsel has agreed to a short continuance, but opposes a delay of more than 90 days. A short continuance will be granted. The District has a right to a speedy resolution of its complaint, and all parties have an interest in a determination of the issues concerning Student’s placement before the beginning of the next school year. Accordingly, this matter will be set as follows:
Mediation: To be determined by the parties.
Prehearing Conference: 06/10/2013, at 10:00 a.m.
Due Process Hearing: 06/17/2013, at 1:30 p.m.; 06/18/2013; 06/19/2013;
06/20/2013, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
IT IS SO ORDERED.
Dated: May 20, 2013 /s/
TIMOTHY L. NEWLOVE
Presiding Administrative Law Judge Office of Administrative Hearings