California OAH special education order · July 29, 2016
Order Granting Request for Continuance and Setting Prehearing Conference and Hearing Dates; and Denying Motion to Amend Complaint
OAH Case No. 2016031019 · ALJ Cheryl Carlson
OAH granted Student's unopposed continuance because an independent assessment was not finished, but denied Student's motion to amend because no proposed amended complaint was filed with it.
This case went to decision
Student v. Vacaville Unified School District et al.: Vacaville and Sacramento City Unified must fund 188 therapy hours for inadequate mental health support, plus make-up speech services and assessments. (2017)
Summary
Student asked to continue the hearing dates because Student's independent assessor had not finished his assessment. Both districts did not oppose. OAH found good cause, vacated all dates, and reset the prehearing conference for August 26, 2016 and the hearing for August 30, 2016. OAH denied Student's motion to amend the complaint because Student did not attach a proposed amended complaint.
Why it matters
A motion to amend a due process complaint should include the proposed amended complaint, or OAH may deny it outright. An unfinished independent assessment can be good cause for a continuance when the other side does not oppose.
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. 2016031019 v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
VACAVILLE UNIFIED SCHOOL PREHEARING CONFERENCE AND
DISTRICT AND SACRAMENTO CITY HEARING DATES; AND DENYING
UNIFIED SCHOOL DISTRICT. MOTION TO AMEND COMPLAINT
On July 25, 2016, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings, because Student’s independent assessor has not completed his assessment. On July 28, 2016, both Vacaville Unified School District and Sacramento City Unified School District filed responses stating they did not oppose the motion.
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:
Granted. All dates are vacated. This matter will be set as follows:
Prehearing Conference: August 26, 2016 at 1:00 PM Due Process Hearing: August 30, 2016 at 9:30 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
Student’s motion to amend the complaint is denied because Student did not file a proposed amended complaint with his motion.
IT IS SO ORDERED.
DATE: July 29, 2016
CHERYL CARLSON
Administrative Law Judge Office of Administrative Hearings