California OAH special education order · July 31, 2015

Order Denying Request to Conduct an Additional Day of Hearing

OAH Case No. 2015030220 · ALJ Rebecca Freie

OAH refused to reopen a completed due process hearing for a post-hearing Lindamood-Bell assessment, finding Student had ample time to get the evidence before and during the hearing.

Denied Evidence and witnesses

This case went to decision

Student v. Fresno Unified School District: Fresno Unified must train case managers after holding an IEP meeting without a speech therapist; other claims denied. (2015)

Summary

After a 10-day hearing ended on June 25, 2015, Student had a Lindamood-Bell assessment done on July 23, 2015. Student, represented by Mother, then asked OAH to reopen the hearing so someone from the center could testify about the assessment to support a compensatory education request. Fresno Unified opposed. The ALJ denied the request because Student had more than three months before the hearing to get an assessment, Mother was told at the prehearing conference that she needed evidence of the type, amount, duration, and need for compensatory education, there were breaks during the hearing when an assessment could have been done or a continuance requested, and Student cited no authority allowing reopening for evidence that did not exist at the time of the hearing.

Why it matters

Parents must gather proof of the type and amount of compensatory education they want before they rest their case. OAH will generally not reopen a hearing for assessments done afterward, so get assessments early or ask for a continuance.

Topics

reopen hearing new evidence compensatory education independent assessment self-represented parent lindamood-bell

Order details

OAH case number: 2015030220
Order date: July 31, 2015
Order type: Evidence and witnesses
Ruling: Denied
Administrative law judge: Rebecca Freie
Moving party: Student
Case filed by: Student
Education agency: Fresno Unified School District
Student's counsel: Parent (self-represented)
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

March 20, 2015: Order Granting in Part and Denying in Part District's Motion to Limit Issues and Motion to Strike Is
April 14, 2015: Order of Nonaction Without Prejudice
April 14, 2015: Unopposed continuance granted; hearing reset from April 28 to May 5, 2015. (PDF)
April 22, 2015: PHC and hearing continued to May 22 and June 10, 2015, so parties can hold resolution session. (PDF)
May 26, 2015: PHC order sets June 10-12, 2015 hearing, lists issues, and sets exhibit and witness rules. (PDF)
July 30, 2015: Unopposed extension granted; written closing arguments now due August 6, 2015. (PDF)
July 31, 2015: Order Denying Request to Conduct an Additional Day of Hearing
August 3, 2015: Order Denying Motion to Consolidate
Decision (2015-08-31)

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. 2015030220 v. ORDER DENYING REQUEST TO

CONDUCT AN ADDITIONAL DAY OF

FRESNO UNIFIED SCHOOL DISTRICT. HEARING

This case was filed on March 3, 2015. The due process hearing was held on June 10, 11, 12, 15, 16, 17, 18, 23, 24, and 25, 2015. The matter was completed on June 25, 2015, with the exception of the receipt of closing arguments which are now due on August 6, 2015.

On July 23, 2015, Student was assessed at Lindamood-Bell Learning Processes in San Luis Obispo, at the request of Parent. On July 29, 2015, Student filed a request asking that the Office of Administrative Hearings reopen the due process hearing so that he may introduce evidence including the Lindamood-Bell assessment. Fresno Unified School District filed an opposition to this request.

DISCUSSION AND ORDER

Student is asking that the hearing be reopened to present evidence of an assessment of Student conducted by the Lindamood-Bell on July 23, 2015. Student wishes to have someone from the Center testify about the assessment as part of his case for the purpose of presenting his need for compensatory education.

This matter was filed by Student on March 3, 2015. The complaint contains allegations that Student has deficits in reading comprehension, and the proposed resolutions request compensatory education in several areas, including reading comprehension. The Order following the prehearing conference conducted on May 22, 2015, contains the explicit instruction that any party requesting compensatory education “should provide evidence regarding the type, amount, duration, and need for any requested compensatory education.”

Student was given this opportunity during the hearing.

The due process hearing in this matter began on June 10, 2015, and continued for eight additional days during June 2015, with the parties resting their respective cases after 5:00 p.m. on June 25, 2015. Student was represented by Mother. The evidence Student wishes to present was developed four weeks following the conclusion of the hearing.

Student had more than three months after filing his complaint to the commencement of the hearing to obtain an assessment that might show a need for compensatory education and recommended services. In addition, Mother was verbally advised during the PHC on May 22, 2015, of the evidentiary requirements for establishing a remedy of compensatory education, should Student prevail. During the course of the hearing, there were several days when the hearing did not occur, which provided an opportunity for such an assessment to occur, and Mother could then have asked to add this evidence and/or could have requested a continuance of the hearing so that this assessment could be completed. She did not do so, and rested her case on June 25, 2015. Finally, Student has not provided any authority that would permit the ALJ to reopen the hearing for evidence that did not exist at the time of the hearing. Accordingly, the request to reopen the case is denied.