California OAH special education order · February 9, 2015
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2015020031 · ALJ June R. Lehrman
OAH denied District's motion to unexpedite because Student's complaint challenged repeated removals from her placement and the outcomes of manifestation determination meetings, which triggers the expedited hearing timeline.
Summary
District asked OAH to take the case off the expedited track and cancel the expedited hearing dates. District argued that the complaint raised no expedited issues because the manifestation meetings had found Student's conduct was a manifestation of her disability. Student did not respond, but OAH denied the motion anyway. The complaint alleged changes in Student's placement through repeated removals and disagreement with the decisions made at manifestation meetings, so the expedited timeline applies even though the meetings found her behavior was disability-related. All expedited and non-expedited dates stay on calendar.
Why it matters
A parent can still get an expedited hearing when a manifestation meeting found the behavior was disability-related, if the parent challenges repeated removals or the lack of program changes afterward. Districts cannot easily get such cases taken off the fast track.
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. 2015020031 v. ORDER DENYING MOTION TO
UNEXPEDITE HEARING
DAVIS JOINT UNIFIED SCHOOL
DISTRICT.
On January 30, 2015, Student filed a Due Process Hearing Request (complaint)
against District. The complaint alleged that District had repeatedly removed Student from her educational placement due to her behaviors, without proper notice; that District had failed to provide clear information about the number of times Student had been removed from the classroom during the 2013-14 and 2014-15 school years; and that Student has had manifestation determination meetings resulting in no appropriate or effective services.
Student stated four issues in the complaint, including Issue Two alleging that Student’s behavior plan was not appropriate. Issue Two re-stated the allegation that although manifestation meetings have been held determining Student’s behaviors to be a manifestation of her disability, no appropriate changes to her educational program were then made, and she has been repeatedly removed from class.
On February 3, 2015, the Office of Administrative Hearings issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation (Scheduling Order).
On February 4, 2015, District filed a motion to unexpedite this matter and vacate the expedited dates. District argues that no expedited issues were alleged in the complaint, such that an expedited hearing is not required. Specifically, District contends that the complaint does not challenge any decision by District regarding a change in educational placement, or a disagreement with a manifestation determination made by the district, because the manifestation meetings at issue did determine Student’s conduct to be a manifestation of her disability.
OAH has received no response from Student. Nevertheless, as explained below, the motion is denied. All dates, both expedited and non-expedited, will remain on calendar as set forth in the Scheduling Order.
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 facts as stated in the complaint relate to changes in her educational placement, and to disagreements with the decisions made at manifestation determination meetings, notwithstanding that those meetings may have determined Student’s conduct to be a manifestation of her disability. Once these issues are raised, the expedited hearing time frame applies. Accordingly, the motion to unexpedite the hearing dates must be denied.
Accordingly, the expedited hearing dates will not be vacated.
ORDER
1. The motion to unexpedite the hearing dates is denied.
2. The hearing shall proceed as scheduled.
DATE: February 9, 2015
/ S/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings