California OAH special education order · May 20, 2016
Order Denying Request for Telephonic Status Conference
OAH Case No. 2015120889 · ALJ Peter Paul Castillo
OAH denied Student's request for a telephonic status conference after Grandmother could not testify because of Student's hospitalization. The hearing will resume as scheduled, and Student must document the hospitalization.
This case went to decision
Student v. Tehachapi Unified School District: Tehachapi Unified denied FAPE by cancelling the June 2015 IEP meeting and leaving no IEP in place; staff training ordered. (2016)
Summary
Student asked for a telephonic status conference because Grandmother could not leave the hospital, where Student remained, to testify at the May 23, 2016 hearing. The District would not agree to a short continuance or a status conference. OAH denied the request and ordered the hearing to resume on May 23 to address the issue. Student must bring hospital documentation showing Grandmother cannot leave, the parties must be ready to discuss having her testify by phone, and both sides must have other witnesses ready to testify that day.
Why it matters
When a witness cannot attend, OAH may keep the hearing on schedule and ask for proof of the problem, such as hospital records. OAH may also consider other options, like telephone testimony, rather than delaying the case. Families should gather documentation early and be ready to suggest remote testimony.
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
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. 2015120889 v. ORDER DENYING REQUEST FOR
TELEPHONIC STATUS
TEHACHAPI UNIFIED SCHOOL CONFERENCE
DISTRICT.
On May 20, 2016, Student filed a request for a telephonic status conference in this matter with the Office of Administrative Hearings, based upon Grandmother’s inability to appear at the hearing on May 23, 2016, to testify because of Student’s continued hospitalization. Student’s request indicates that his legal counsel spoke to legal counsel for Tehachapi Unified School District, who would not agree to a short continuance or telephonic status conference.
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).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Denied. The hearing shall recommence at 10:00 a.m., on May 23, 2016, to discuss the matters raised in Student’s request. Student shall provide documentation from the hospital that Grandmother is not able to leave the hospital due to Student’s condition. Parties shall also be prepared to discuss whether Grandmother’s testimony may be taken telephonically at the hospital or the Van Nuys office of the Office of Administrative Hearings. Student and District shall have witnesses available to testify on May 23, 2016, if Grandmother cannot testify on that day.
IT IS SO ORDERED.
DATE: May 20, 2016
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings