California OAH special education order · October 21, 2013
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2013100547 · ALJ Bob N. Varma
OAH denied both parties' joint request to unexpedite the case because Student's complaint challenges a manifestation determination, which by law must go to an expedited hearing.
Summary
Student and District both asked OAH to cancel the expedited hearing dates and move the whole case to the regular calendar, saying Student had mistakenly filed a proof of service referring to a motion for an expedited hearing. OAH agreed the proof of service was a mistake but explained that the case was expedited because of what the complaint says, not because of that filing. One issue challenges District's March 4, 2013 finding that Student's behavior was not a manifestation of his disability, and that kind of claim must be heard on an expedited basis. OAH said the case could be unexpedited only if Student withdraws that issue.
Why it matters
Any complaint that challenges a manifestation determination automatically triggers a mandatory expedited hearing, and the parties cannot agree to waive it. To proceed on the regular timeline, the parent must withdraw the manifestation determination issue.
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. 2013100547
v. ORDER DENYING MOTION TO
UNEXPEDITE HEARING
OAKLAND UNIFIED SCHOOL
DISTRICT.
On October 14, 2013, Student filed a Due Process Hearing Request (complaint)
against the Oakland Unified School District. On October 16, 2013, the Office of Administrative Hearings (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 for an expedited mediation on October 29, 2013, an expedited prehearing conference (PHC) on November 4, 2013, and an expedited due process hearing beginning on November 13, 2013. The Scheduling Order also set this matter for a non- expedited mediation on November 20, 2013, a non-expedited PHC on December 2, 2013, and a non-expedited due process hearing beginning on December 10, 2013.
On October 17, 2013, both Student and District filed documents requesting that the dates in the expedited matter be vacated and the entire case proceed on the non-expedited hearing calendar. The parties assert that student mistakenly filed a proof of service stating that there was a motion for an expedited hearing.
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
Here, both parties contend that Student mistakenly filed a proof of service with the complaint that asserted Student was filing and serving upon OAH and District a motion and proposed order for an expedited hearing. The parties’ assertion that Student’s complaint is accompanied by an erroneous proof of service is correct. However, it is the substance of Student’s complaint that is the reason why OAH has deemed some issues in this case as suitable for an expedited hearing.
One of the issues raised for determination in Student’s complaint alleges that “[District] denied Student of [sic] a FAPE [free appropriate public education], as follows: At the March 4, 2013 Manifestation Determination Review, [District’s] finding that Student’s behavior was not a manifestation of his disability was predetermination by the district and not supported by substantial evidence.” Student is therefore disagreeing with and challenging the findings of the March 4, 2013 manifestation determination. Such a disagreement and challenge falls squarely within the applicable law discussed above, and this issue is appropriate for determination through an expedited due process hearing. Should Student withdraw this issue, the matter may be unexpedited. Accordingly, the parties’ request to unexpedite this matter is denied.
ORDER
1. The motion to unexpedite the hearing dates is denied.
2. The hearing shall proceed as scheduled.
Dated: October 21, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings