California OAH special education order · July 31, 2013

Order Granting District's Request for Continuance and Setting Mediation/PHC/Hearing

OAH Case No. 2013070575 · ALJ Richard T. Breen

OAH granted the District's shorter continuance instead of Mother's four-month request because Mother's medical records showed only minor injuries and the shorter delay gave enough time to find counsel.

Granted Scheduling and continuances

This case went to decision

Paramount Unified School District v. Student: Paramount Unified's triennial psychoeducational, speech-language, and OT assessments held appropriate; no IEEs at public expense. (2014)

Summary

Student's Mother asked to continue all dates so mediation would be in November 2013 and hearing in December. She cited a car accident and a wish to possibly hire a lawyer. The District did not oppose a continuance but argued that four months was unreasonable, and it asked for shorter dates. OAH found that Mother's medical records showed only same-day release and medication for back and neck strain, and that the District's dates gave her enough time to recover, arrange transportation, and contact attorneys. OAH set mediation for August 29, a prehearing conference for September 16, and hearing for September 24-26, 2013.

Why it matters

Parents asking for a long continuance for medical reasons should submit records that actually support the claimed limits, because OAH may grant only a shorter delay. Wanting time to find a lawyer justifies some extra time, not an open-ended postponement.

Key authority cited

  • 34 C.F.R. § 300.515
  • 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

continuance good cause self-represented parent medical documentation scheduling

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:

PARAMOUNT UNIFIED SCHOOL OAH CASE NO. 2013070575

DISTRICT,

ORDER GRANTING DISTRICT’S

v. REQUEST FOR CONTINUANCE AND

SETTING

PARENT ON BEHALF OF STUDENT. MEDIATION/PHC/HEARING

On July 25, 2013, Student’s Mother filed a request for a continuance of all dates that would result in mediation in November of 2013, and a hearing in December, the reasons given were a desire to possibly retain counsel and recovery from an auto accident. ON September 26, 2013, District filed its own request for a continuance, noting that while it did not oppose a continuance, a continuance of the length requested by Student was unreasonable. As discussed below, a continuance is granted to the dates requested by District.

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. Although Student’s Mother recited various symptoms and injuries from the accident, these were not fully supported by the attached medical documents, which showed only that Mother was released the day of the accident and prescribed a muscle relaxant and ibuprofen for back and neck strain. Nothing in the medical documents indicates that Mother will be incapable of activities by the end of August or September. To the extent Mother recites possible transportation issues, a sufficient continuance is being granted to allow Mother time to make arrangements, considering that the mediation and hearing will be held at District’s offices in Mother’s community and the prehearing conference is by telephone. Further, a continuance of the length requested by District is adequate for Mother to contact attorneys. Accordingly, Mother did not show good cause to continue the hearing for four months, although Mother’s reasons support a continuance to the dates requested by District, such that District’s request is granted. This matter will be set as follows:

Mediation: August 29, 2013 at 9:30 AM Prehearing Conference: September 16, 2013 at 10:00 AM Due Process Hearing: September 24-26, 2013 at 9:30 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.

IT IS SO ORDERED.

Dated: July 31, 2013 /s/

RICHARD T. BREEN

Presiding Administrative Law Judge Office of Administrative Hearings