California OAH special education order · September 22, 2014

Order Denying Request for Continuance

OAH Case No. 2014051076, 2014031057 · ALJ Paul H. Kamoroff

OAH denied Student's request to continue the hearing. None of the grounds showed good cause: objecting to being named as a party, a moot peremptory challenge, or a pending appeal of an ADA accommodation decision.

Denied Scheduling and continuances

This case went to decision

Desert Sands Unified School District v. Student: Desert Sands Unified's 2013 IEP denied FAPE by dropping adapted PE and omitting OT; home instruction and reassessment upheld. (2014)

Summary

Student asked OAH to continue the hearing dates in two consolidated cases filed by Desert Sands Unified School District, and District did not respond. Student gave three reasons. He objected to being named as the sole party, but Parent had already been dismissed because Student turned 18 and had not transferred his educational rights to Parent. He wanted to file a peremptory challenge against ALJ Robert Helfand, but the matter had already been reassigned before he asked, so that request was moot. He also wanted to appeal an OAH decision on an Americans with Disabilities Act accommodation request, which OAH said is not good cause for a continuance. OAH denied the request and confirmed all hearing dates.

Why it matters

Once a student turns 18, special education rights transfer to the student unless they are formally transferred back to the parent, so the parent may be removed as a party. OAH treats continuances as disfavored and will not delay a hearing over procedural disputes such as a pending appeal of an ADA accommodation decision.

Key authority cited

  • 34 C.F.R. § 300.515
  • 34 C.F.R. § 300.520
  • Ed. Code § 56502, subd. (f)
  • Ed. Code § 56505, subd. (f)(3)
  • Ed. Code § 56041.5
  • Cal. Rules of Court, rule 3.1332

People named in the order

  • Robert Helfand, Administrative Law Judge (previously assigned)

Topics

continuance age of majority transfer of rights peremptory challenge ada accommodation good cause

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 Consolidated Matters of:

DESERT SANDS UNIFIED SCHOOL OAH Case No. 2014051076 DISTRICT, (Primary)

v.

STUDENT.

DESERT SANDS UNIFIED SCHOOL OAH Case No. 2014031057

DISTRICT,

v. ORDER DENYING REQUEST FOR

CONTINUANCE

STUDENT.

On September 22, 2014, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings. District has not submitted a response to Student’s request.

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).)

Here, Student seeks a continuance based upon several grounds, each which lacks good cause.

First, Student complains that he is named solely as a party based upon improper factual allegations made by District. However, as detailed in the OAH Prehearing Conference Order of September 15, 2014, Student’s parent was dismissed as a party on the basis that Student had reached the age of majority and has failed to transfer his educational rights to Parent. Under federal and California special education law, when a student eligible for special education reaches the age of 18 years, the special education rights previously held by the parent transfer to the student. (34 C.F.R. § 300.520(a)(ii)(2006); Ed. Code, § 56041.5.)

Student next seeks to continue the hearing based upon a desire to peremptory challenge Administrative Law Judge Robert Helfand. However, the undersigned ALJ is assigned to convene the hearing for this matter, and reassigned the matter before Student made the peremptory request. Consequently, Student’s request is moot.

Finally, Student seeks to appeal a recent OAH American with Disabilities Act accommodation request determination. However, an appeal of an ADA determination does not constitute good cause for a continuance.

OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:

Denied. All hearing dates are confirmed and shall proceed as calendared.

IT IS SO ORDERED.

DATE: September 22, 2014

/S/

PAUL H. KAMOROFF

Administrative Law Judge Office of Administrative Hearings