California OAH special education order · September 6, 2013
Order Denying Student's Request to Unexpedite Hearing
OAH Case No. 2013080801 · ALJ Robert Helfand
OAH denied Student's unopposed request to unexpedite the hearing because the complaint still raised manifestation determination and disciplinary issues that must be heard on the mandatory expedited timeline.
Summary
Student asked OAH to unexpedite the case and vacate the expedited hearing dates, and the District filed a statement of non-opposition. The complaint alleged that the District failed to find that conduct leading to a December 2012 expulsion was a manifestation of Student's suspected ADHD, and that the District failed to hold a manifestation hearing. OAH denied the request. The right to an expedited hearing is mandatory, and a case can be unexpedited only if no expedited issue is alleged or if Student withdraws the issues that triggered the expedited hearing.
Why it matters
Even when both sides agree, OAH will not move discipline or manifestation determination claims off the expedited track. A family that wants more time must withdraw the expedited issues or file them separately.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- 20 U.S.C. § 1415(k)(4)(B)
- 34 C.F.R. § 300.532(a)
- 34 C.F.R. § 300.532(c)(2)
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:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013080801
v. ORDER DENYING STUDENT’S
REQUEST TO UNEXPEDITE
LOS ANGELES UNIFIED SCHOOL HEARING
DISTRICT.
On August 23, 2013, Parent on behalf of Student (Student) filed with the Office of Administrative Hearings (OAH) a Due Process Hearing Request (complaint) against the Los Angeles Unified School District (District) as respondent. On August 27, 2013, OAH issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation (Scheduling Order). The Scheduling Order set this matter as to the expedited portion on September 12, 2013 for mediation, September 20, 2013 for the prehearing conference (PHC), and September 24 through September 26, 2013 for the due process hearing (DPH). The Scheduling Order also set the unexpedited portion on October 1, 2013 for mediation, October 11, 2013 for the PHC, and October 17, 2013 for the DPH.
On September 4, 2013, Student filed a request to unexpedite this matter and vacate the expedited dates. On September 5, 2013, the District filed a response a statement of non- opposition to Student’s request.
APPLICABLE LAW
A parent of a child with a disability who disagrees with any decision by a school district regarding a change in educational placement of the child based upon a violation of a code of student conduct, or who disagrees with a manifestation determination made by the district, may request and is entitled to receive an expedited due process hearing. (20 U.S.C.
§ 1415(k)(3)(A); 34 C.F.R. § 300.532(a) (2006).) An expedited due process hearing before OAH must occur within 20 school days of the date the complaint requesting the hearing is filed. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. § 300.532(c)(2) (2006).) The procedural right to an expedited due process hearing is mandatory and does not authorize OAH to make exceptions or grant continuances of expedited matters. (Ibid.) In sum, a matter can only be unexpedited or continued if no issue is alleged that is subject to an expedited hearing, or if the student withdraws the issues in the complaint that triggered the expedited hearing.
DISCUSSION
Student’s complaint alleges five issues. Student contends that the District engaged in unlawful disciplinary actions by failing to properly document and provide notice of suspensions. In Issue four, Student contends that the District failed to find that Student’s conduct, resulting in the December 11, 2012 expulsion order, was a manifestation of his suspected disability, Attention Deficit Hyperactivity Disorder (ADHD).
Student seeks to vacate the expedited hearing dates even though issues raised in the complaint are subject to an expedited time frame. Specifically, that the District failed to hold a manifestation hearing although school officials had suspected that Student was eligible for special education as he suffered from ADHD; and Student’s conduct causing the discipline was a result of his ADHD. Once these issues are raised, the expedited hearing time frame applies. Accordingly, the motion to unexpedite the hearing dates must be denied.
ORDER
1. Student’s request to unexpedite the hearing dates is denied.
2. The hearing shall proceed as scheduled.
Dated: September 6, 2013 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings