California OAH special education order · October 10, 2013
Order Denying Motion to Dismiss, Ordering Student to File a Statement of Service, and Resetting Timelines
OAH Case No. 2013090788 · ALJ Adrienne L. Krikorian
OAH denied Hemet Unified's motion to dismiss for lack of service as premature, ordered Student to file a completed statement of service, and reset all timelines from the date the complaint was re-served.
This case went to decision
Student v. Hemet Unified School District (consolidated): Hemet Unified's May 2013 preschool special day class offer upheld, but it cannot implement its January 2014 offer. (2014)
Summary
District moved to dismiss Student's due process complaint without prejudice. It said it was never served, learned of the case only from OAH's scheduling order, and the courtesy copy from OAH was incomplete and partly illegible. After Student re-filed the complaint with a cover letter to District on October 7, 2013, OAH found dismissal premature and denied the motion without prejudice. OAH ordered Student to file and serve, by October 14, 2013, a completed Statement of Service with a legible signature showing how District was served, and reset all timelines from the October 7, 2013 filing date.
Why it matters
Parents filing their own complaints must actually serve the district and complete the statement of service, showing the method used. Defective service can delay the resolution session and hearing timelines, though OAH may allow the parent to fix it rather than dismiss the case.
Key authority cited
- 20 U.S.C. § 1415(f)(1)(B)(i)(I)
- 34 C.F.R. § 300.510(a)(1)
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:
OAH CASE NO. 2013090788
PARENT ON BEHALF OF STUDENT,
ORDER DENYING MOTION TO
v. DISMISS, ORDERING STUDENT TO
FILE A STATEMENT OF SERVICE,
HEMET UNIFIED SCHOOL DISTRICT. AND RESETTING TIMELINES
Parents on behalf of Student filed a Request for Due Process and Mediation (complaint) on September 23, 2013. The Office of Administrative Hearings (OAH) issued a scheduling order on September 26, 2013. On October 1, 2013, District filed a motion to dismiss the complaint without prejudice. District contends that Student did not serve the complaint on District, that it only learned about the matter when it received the scheduling order from OAH, and that the copy of the complaint provided as a courtesy by OAH was not complete or fully legible. On October 7, 2013, Student filed with OAH another copy of the complaint with OAH, along with a letter to the District transmitting the complaint to the District. Student requested in the letter that District confirm receipt of the complaint. The Statement of Service attached to the complaint is signed, although the signature is illegible.
It does not indicate by checking one of the boxes how Student achieved service of the complaint on the District.
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).)
Here, District contends that it did not receive the complaint when it was originally filed, which impacts the applicable timelines for a resolution session and hearing. However, given all the circumstances noted above, dismissal of Student’s complaint is premature and therefore District’s motion is denied without prejudice.
Student is ordered to file with OAH, and serve on the District, not later than the close of business on October 14, 2013, a completed Statement of Service with a legible signature identifying the means by which Student served District on October 7, 2013.
The original dates set in this matter are vacated and the timelines shall be reset based upon the October 7, 2013 filing date, without prejudice to District’s right to seek appropriate relief if it continues to contend that it has not been served with the complaint after meeting and conferring with Student’s parents.
IT IS SO ORDERED.
Dated: October 10, 2013 /s/
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings