California OAH special education order · April 8, 2016
Order Denying Motion to Dismiss and Ordering Student to Serve Kern County Superintendent of Schools
OAH Case No. 2016040211 · ALJ Robert Helfand
OAH denied Kern's motion to dismiss for lack of service, but ordered Student to serve Kern with the complaint within five business days or face dismissal.
This case went to decision
Student v. Kern County Superintendent of Schools: Kern County Superintendent of Schools must fund at least six months of residential treatment after its home schooling placement denied FAPE. (2016)
Summary
Student filed a due process complaint and then a corrected complaint against Kern. Both were faxed only to OAH and to three attorneys at Schools Legal Service, not to Kern itself. Kern moved to dismiss because Education Code section 56502 requires the filing party to give the other party a copy at the same time it files, and Student did not respond. OAH denied the motion without prejudice, ordered Student to serve Kern within five business days and file proof of service, and vacated the scheduling order. OAH also warned that the case will be dismissed if Student does not serve Kern on time.
Why it matters
Parents must serve the district or agency itself with the due process complaint when they file it. Sending a copy only to OAH or to outside attorneys may not count, and the hearing timelines do not start until service is done properly.
Key authority cited
- Ed. Code, § 56502, subd. (c)(1)
People named in the order
- Kyle Holmes, Attorney, Schools Legal Service (received copy of complaint)
- Darren Bogie, Attorney, Schools Legal Service (received copy of complaint)
- Kelly Lazerson, Attorney, Schools Legal Service (received copy of complaint)
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2016040211 v. ORDER DENYING MOTION TO
DISMISS AND ORDERING STUDENT
KERN COUNTY SUPERINTENDENT OF TO SERVE KERN COUNTY
SCHOOLS. SUPERINTENDENT OF SCHOOLS
On March 30, 2016, Parents on behalf of Student filed with the Office of Administrative Hearings a Request for Due Process Hearing naming the Kern County Superintendent of Schools. The Request for Due Process hearing contained a Proof of Service which indicated that a copy had been sent by facsimile to OAH and attorneys Kyle Holmes, Darren Bogie, and Kelly Lazerson of the Schools Legal Service, a law firm. No copy was sent on Kern. Thus, service was not made on Kern.
On March 31, 2016, Student filed with OAH a Corrected Due Process Complaint (complaint) naming Kern. The attached Proof of Service indicated that a copy of the complaint had been sent by facsimile to OAH and the three Schools Legal Service attorneys served with the original Request for Due Process Hearing. No copy was sent to Kern. Thus, service was not made on Kern.
On April 4, 2016, Kern filed a Motion to Dismiss on grounds that Kern had not been served as required by Education Code section 56502. Student did not submit a response.
Education Code section 56502, subsection (C)(1) requires a party initiating a due process proceeding to serve a written request to the State Superintendent and “shall provide the other party to the hearing with a copy of the request at the same time as the request is filed with the Superintendent.” Thus, a party initiating a due process proceeding is required to serve the opposing party. Here, Student has failed to serve Kern.
ORDER
1. Kern’s motion to dismiss Student’s complaint is DENIED without prejudice.
2. Student is ordered to serve Kern with a copy of the Corrected Due Process
Complaint within five business days of the date of this order, and concurrently file a copy of the proof of service with OAH.
3. The April 4, 2016 Scheduling Order is hereby vacated. Should Student
appropriately serve a copy of the Corrected Due Process Complaint on Kern, OAH will issue a new scheduling order based on the date of proper service on Kern. If Student fails to timely serve Kern, OAH shall dismiss this action.
DATE: April 8, 2016 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings