California OAH special education order · November 4, 2014

Order Denying Request for Continuance

OAH Case No. 2014100402 · ALJ Bob N. Varma

OAH denied a request, filed the day before hearing, to continue the District's due process hearing. The filer had never documented his authority to represent Student, and the District opposed the delay.

Denied Scheduling and continuances

This case went to decision

San Mateo-Foster City School District v. Student: San Mateo-Foster City School District's rapid mental health assessment was appropriate, so the parent's request for a publicly funded IEE was denied. (2014)

Summary

Naum Morgovsky, calling himself Student's "attorney in fact" under the Probate Code, asked OAH on November 3, 2014 to continue the November 5 hearing in a case the District had filed. The District opposed. OAH denied the request and kept all dates as scheduled. It noted that the Probate Code does not apply to special education cases and that Student never filed the Notice of Representation ordered at the prehearing conference. OAH said that failure alone was grounds to deny the request, and it also denied the request on its merits after considering the District's opposition.

Why it matters

A non-attorney who wants to represent a student at OAH needs written authorization from the parent on file. A Probate Code power of attorney does not do the job, and requests from someone OAH cannot confirm as the representative may be denied. Last-minute continuance requests are disfavored, especially when the other side opposes them.

Key authority cited

34 C.F.R. § 300.515(a), (c)
Ed. Code § 56502, subd. (f)
Ed. Code § 56505, subd. (f)(3)
Cal. Code Regs., tit. 1, § 1020
Cal. Rules of Court, rule 3.1332

People named in the order

Naum Morgovsky, Purported representative for Student ("attorney in fact")

Topics

continuance good cause non-attorney representative notice of representation power of attorney

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:

SAN MATEO-FOSTER CITY SCHOOL OAH Case No. 2014100402

DISTRICT,

ORDER DENYING REQUEST FOR

v. CONTINUANCE

PARENT ON BEHALF OF STUDENT.

On November 3, 2014, Naum Morgovsky filed a request to continue the November 5, 2014 due process hearing in this matter on various grounds. On November 4, 2014, the San Mateo-Foster City School District filed an opposition to the request. As discussed below the request is denied.

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).) The Office of Administrative Hearings 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).)

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

Denied. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. This matter was filed by San-Mateo against Student. On October 23, 2014, in preparation for the October 27, 2014 prehearing conference, Mr.

Morgovsky filed a PHC statement on behalf of Student. Mr. Morgovsky designates himself as “Attorney in fact” under the Probate Code. The Probate Code does not apply to special education proceedings. Neither Mr. Morgovsky nor Parents have filed any document with OAH establishing that Mr. Morgovsky is authorized to represent Student in these proceedings. Despite that, and based upon Parent’s oral statements at the October 27, 2014 PHC, OAH permitted Mr. Morgovsky to participate in the PHC. Student was ordered to file a Notice of Representation with respect to Mr. Morgovsky’s representation no later than October 29, 2014. To date, OAH has received no such notice. This, in and of itself, is grounds to deny a request to continue filed by an individual who OAH cannot confirm has written authorization to represent Student. If Student intends to have Mr. Morgovsky represent Student at hearing, Parent and/or Mr. Morgovsky must provide a written authorization for representation to the Administrative Law Judge at the start of the hearing.

Regardless of the concerns OAH has regarding Mr. Morgovsky’s representation of Student, OAH has considered the request for continuance and San Mateo’s opposition. Student’s request is denied. The matter shall proceed to hearing on November 5, 2014, as scheduled.