California OAH special education order · November 18, 2013

Order Granting Motion to Dismiss and Denying Motion to Shift Costs

OAH Case No. 2013070920 · ALJ Adrienne L. Krikorian

OAH dismissed Student's complaint without prejudice because Parent never took part in a resolution session despite District's documented efforts, but denied cost-shifting for lack of evidence of bad faith.

Ruling Sanctions and cost-shifting

Summary

District moved to dismiss Student's amended complaint because Parent never took part in a resolution session. District also asked OAH to make Student's side pay the costs District incurred trying to hold one. OAH found that District documented many unsuccessful attempts over more than sixty days, and that Student's own attorney admitted Parent was not responding, so it dismissed the case without prejudice and vacated all dates. OAH denied cost-shifting because District offered no evidence of bad faith or willful refusal to participate.

Why it matters

A parent who does not respond to resolution session requests risks having the case dismissed, even when represented by counsel. However, a district cannot shift its costs without showing bad faith or willful refusal.

Key authority cited

  • 20 U.S.C. § 1415(f)(1)(B)(i)(I)
  • 34 C.F.R. § 300.510(a)(1)
  • 34 C.F.R. § 300.510(a)(3)
  • 34 C.F.R. § 300.510(b)(3)
  • 34 C.F.R. § 300.510(b)(4)

People named in the order

  • Nicole Hodge Amey, Student's attorney

Topics

resolution session dismissal without prejudice cost shifting parent nonparticipation educational rights holder

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. 2013070920

v. ORDER GRANTING MOTION TO

DISMISS AND DENYING MOTION

DOWNEY UNIFIED SCHOOL DISTRICT. TO SHIFT COSTS

Student filed an amended complaint on August 20, 2013. On November 13, 2013, District filed a motion to dismiss Student’s complaint and for an order shifting costs. District contends that Student’s parent did not participate in an early resolution session, and that District has made multiple unsuccessful attempts to schedule a resolution session. The matter is set for a prehearing conference on November 22, 2013 and a hearing on December 4, 2013. Attorney Nicole Hodge Amey filed an opposition to the motion to dismiss and shift costs on Student’s behalf on November 18, 2013.

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).)

In other words, OAH has discretion to dismiss the matter if the parent refuses or fails to participate in a resolution session, no agreement exists to proceed to mediation in lieu of a resolution session, and the District provides appropriate documentation supporting its motion to dismiss. Here, District filed its motion, supported by authenticated evidence, almost ninety days after the end of the 30-day resolution period. No dispute exists that a resolution session did not take place as required under the IDEA or that no waiver or agreement to mediate in lieu of a resolution session exists. Although the parties have not clearly established who the educational rights holder is in this case, the evidence does support a finding that Student, who is still a minor, does not hold educational rights. Therefore, the educational rights holder, whether that is the parent or a court appointed adult responsible for Student’s educational rights, must participate in a resolution session before this matter goes to hearing. District has established that it made many unsuccessful attempts to schedule a resolution session with Student’s parent over a period of more than sixty days. Student’s attorney acknowledges that Student’s parent has not responded to her inquiries of status, which is consistent with similar representations by the District.

Student’s parent has had ample opportunity to participate in a resolution session and has not done so. Therefore, this matter is dismissed without prejudice, and all dates are vacated.

District also seeks an order shifting the costs that it incurred in attempting to hold a resolution session, which Student’s attorney opposes. District did not offer any evidence that Student, or those acting on her behalf, acted in bad faith or otherwise willfully refused to participate in a resolution session. As such, District’s motion to shift costs is denied.

IT IS SO ORDERED.

Dated: November 18, 2013 /s/

ADRIENNE L. KRIKORIAN

Administrative Law Judge Office of Administrative Hearings