California OAH special education order · December 31, 2015

Order Granting Request to Advance Due Process Timeline

OAH Case No. 2015120810 · ALJ Alexa J. Hohensee

OAH advanced the due process timeline over District's opposition because Parent's emails showed the parties waived the resolution session in writing as of December 29, 2015, starting the 45-day clock.

Granted Scheduling and continuances

This case went to decision

Student v. Oakland Unified School District: Oakland Unified must fix speech therapy delivery and train providers; all other claims, including first-grade placement, denied. (2016)

Summary

Student asked OAH to move up the mediation and hearing dates because the parties had waived the resolution session in writing. District opposed. In reply, Parent filed a sworn declaration authenticating emails, and OAH found the parties had agreed in writing to waive the resolution process as of December 29, 2015. OAH vacated all existing dates and ordered a new schedule based on a 45-day timeline starting December 30, 2015. OAH denied Student's request to reserve 10 hearing days without prejudice, saying that request belongs at the prehearing conference.

Why it matters

A clear written waiver of the resolution session by both sides starts the 45-day hearing timeline the next day, so parents can ask OAH to move the hearing up. Earlier emails did not count because the waiver has to be unequivocal, and the number of hearing days is decided at the prehearing conference.

Key authority cited

20 U.S.C. § 1415(f)(1)(B)(i)(I)
34 C.F.R. § 300.510(a)(1)
34 C.F.R. § 300.510(a)(3)
34 C.F.R. § 300.510(b)(3)
34 C.F.R. § 300.510(c)(1)

Topics

resolution session waiver 45-day timeline advance hearing dates scheduling hearing length

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. 2015120810 v. ORDER GRANTING REQUEST TO

ADVANCE DUE PROCESS TIMELINE

OAKLAND UNIFIED SCHOOL

DISTRICT.

On December 29, 2015, Student filed a request to advance the mediation and hearing dates in this matter. On December 30, 2015, District filed an opposition. On December 30, 2015, Student filed a reply.

APPLICABLE LAW

A local educational agency is required to convene a meeting with the parents and the relevant members of the Individualized Education Program team within 15 days of receiving notice of the Student’s complaint. (20 U.S.C. § 1415(f)(1)(B)(i)(I); 34 C.F.R.

§ 300.510(a)(1) (2006).) The resolution session need not be held if it is waived by both parties in writing or the parties agree to use mediation. (34 C.F.R. § 300.510(a)(3).) If the parents do not participate in the resolution session, and it has not been otherwise waived by the parties, a due process hearing shall not take place until a resolution session is held. (Id. at § 300.510(b)(3).) If the parties agree to waive the resolution session, the 45-day timeline for a due process hearing begins the day after the waiver. (Id. at § 300.510(c)(1).)

DISCUSSION AND ORDER

Student seeks to advance the mediation and hearing dates in light of the parties’ written waiver of the resolution process. In Student’s reply, the sworn declaration of Parent identifies and authenticates copies of email correspondence documenting the parties’ written agreement to waive the resolution process as of December 29, 2015. 1 Accordingly, the 45- day period in which to conduct the hearing begins to run on December 30, 2015.

Parent’s emails in response to District’s inquiry did not include a waiver until Parent’s December 28, 2015 email, which unequivocally stated that Parent waived the resolution process “as of December 29, 2015.”

Student also requests that 10 days be set for the hearing. This type of request is appropriately handled at the prehearing conference. Accordingly, Student’s request that 10 days be reserved for the hearing is denied, without prejudice to Student raising this request in his prehearing conference statement and at the prehearing conference.

ORDER

1. Student’s motion to advance the due process hearing timeline is granted.

2. All presently scheduled mediation, prehearing conference and hearing dates

are vacated.

3. OAH shall issue a scheduling order that sets mediation, prehearing conference

and hearing dates based on a decision timeline that commences on December 30, 2015.